TMI Blog2020 (1) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... ile dealing with the scope of review has held that re-appreciation of evidence and rehearing of case without there being any error apparent on the face of the record is not permissible in light of provisions as contained u/s 114 and Order 47 Rule 1 of Code of Civil Procedure, 1908. This court does not find any reason to review the order - RP-73-2020 - - - Dated:- 23-1-2020 - S.C. Sharma And Shailendra Shukla For the Appellant : Ms. Veena Mandlik, learned counsel ORDER The present review petition has been arising out of order dated 12.12.2019 passed in ITA No.93/2019 disposing of the appeal keeping in view of the CBDT circular dated 08.08.2019. Learned counsel for the appellant has argued before this Court as there was audit objection in the matter the appeal could not be disposed of as done by this Court. This Court in similar circumstances in ITA No.75/2019 Income Tax Department V/s M/s Krishna Warehouse has passed the following order:- Learned counsel for the appellant has argued before this Court that the appeal cannot be disposed of in view of CBDT circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditions are attracted or not would have to be proved and established by the Revenue. Once there is no such record before us, we do not countenance the oral request of Mr. Pinto. Consequently, we do not see any reason to entertain this appeal. It is dismissed. Learned counsel for the appellant has merely stated that there was an audit objection and therefore, in light of the Division Bench judgement of the Bombay High Court, mere raising of this objection in terms of a circular is not enough. The Revenue has not pointed out that this audit objection has been accepted by the department nor any record has been placed before us and therefore, present income tax appeal stands disposed of keeping in view the CBDT circulars dated 10.12.2015 and 11.07.2018. In the light of the aforesaid judgment as the Revenue has not pointed out that the audit objection has been accepted by department nor any record has been place before us. The Apex Court in the case of Haridas Das Vs. Usha Rani Bank (Smt) and Ors., reported in (2006) 4 SCC 78 in paragraph 13 and 20 has held as under :- 13. In order to appreciat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the crucial question which according to the High Court was necessary to be adjudicated was the question whether Title Suit No. 201 of 1985 (sic 1 of 1986) was barred by the provisions of Order 2 Rule 2 CPC. This question arose in Title Suit No. 1 of 1986 and was irrelevant so far as Title Suit No. 2 of 1987 is concerned. Additionally, the High Court erred in holding that no prayer for leave under Order 2 Rule 2 CPC was made in the plaint in Title Suit No. 201 of 1985. The claim of oral agreement dated 19-8-1982 is mentioned in para 7 of the plaint, and at the end of the plaint it has been noted that the right to institute the suit for specific performance was reserved. That being so, the High Court has erroneously held about infraction of Order 2 Rule 2 CPC. This was not a case where Order 2 Rule 2 CPC has any application. In the aforesaid case, the Apex Court has held that rehearing of a case can be done on account of some mistake or an error apparent on the face of the record or for any other sufficient reason. In the present case, there is no error apparent on the face of the record and the petitioner infact under the guise of review is challenging the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f). (v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review. (vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court. (vii) While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent. (viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier. In the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed the decree or made the order. 22. Whereas the appellant-defendant filed a review application confined to the question that he was entitled to the restitution of the property and mesne profit in respect whereof the learned Single Judge of the High Court did not pass any specific order, the application for review filed by the respondent was on the merit of the judgment. The relevant grounds of review which have been placed before us relate to: (i) Unconditional withdrawal of some amount by one of the creditors of the defendant as also the defendant himself. (ii) The defendant's application before the executing court that he was ready and willing to get the sale deed executed on receipt of amount in cash and the said admission allegedly was not brought to the notice of the court. (iii) While holding that there was no agreement to reduce the sale consideration, the High Court had ignored the fact that it was an admitted case of the parties, as stipulated in the contract, that the defendants would get the premises vacated from the tenants within three months. (iv) The appellant had p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not open. In any view of the matter, the same would amount to re appreciation of evidence which was beyond the review jurisdiction of the High Court. 33. The High Court had rightly noticed the review jurisdiction of the court, which is as under: oeThe law on the subject- exercise of power of review, as propounded by the Apex Court and various other High Courts may be summarised as hereunder: (i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. (ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. (iii) Power of review may not be exercised on the ground that the decision was erroneous on merits. (iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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