Commissioner Of Income Tax, Alwar (Rajasthan v. M/S. Vijay Solvex Limited, Bhagwati Sadan, Swami Dayanandmarg, Alwar (Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Civil Review No. 8 / 2017 Commissioner of Income Tax, Alwar (Rajasthan). ----Petitioner Versus M/s. Vijay Solvex Limited, Bhagwati Sadan, Swami DayanandMarg, Alwar (Raj.) ----Respondent Connected With D.B. Civil Review No. 6 / 2017 Commissioner of Income Tax, Alwar (Rajasthan). ----Petitioner Versus M/s. Vijay Solvex Limited, Bhagwati Sadan, Swami Dayanand Marg, Alwar (Raj.) ----Respondent D.B. Civil Review No. 7 / 2017 Commissioner of Income Tax, Alwar (Rajasthan) ----Petitioner Versus M/s. Vijay Solvex Limited, Bhagwati Sadan, Swami Dayanand Marg, Alwar (Raj.) ----Respondent D.B. Civil Review No. 9 / 2017 Commissioner of Income Tax, Alwar (Rajasthan) ----Petitioner Versus M/s. Vijay Solvex Limited, Bhagwati Sadan, Swami Dayanand Marg, Alwar (Raj.) ----Respondent D.B. Civil Review No. 10 / 2017 Commissioner of Income Tax, Alwar (Rajasthan) ----Petitioner Versus M/s. Vijay Solvex Limited, Bhagwati Sadan, Swami Dayanand Marg, Alwar (Raj.) ----Respondent _____________________________________________________ For Petitioner(s) : Mr. Anil Mehta For Respondent(s) : Mr. Anant Kasliwal _____________________________________________________ HON'BLE MR. JUSTICE K.S.JHAVERI HON'BLE MR. JUSTICE INDERJEET SINGHJudgment 26/07/2017 1.By way of these review petitions, the assessee-respondent has prayed for the following relief(s):- “It is therefore, humbly prayed that this court maykindly be pleased to allow the present applicationand recall the order dated 7.12.2016 passed inD.B. Income Tax Appeal No. 818/2008 and theappeal filed by the Income Tax Department maybe dismissed and the order of the Ld. ITAT may beupheld.” 2.Counsel for the petitioner contended that in view ofprovisions of Order 47 Rule 1 CPC he can apply for the review ofthe judgment of the Court which passed the decree or made theorder on account of some mistake or error apparent on the face ofrecord or for any other sufficient reasons. He has also relied uponthe decision of Supreme Court in the case of Board of Control for Cricket, India vs. Netaji Cricket Club reported in AIR 2005 SC 592wherein it has been held as under:- “88. We are, furthermore, of the opinion that thejurisdiction of the High Court in entertaining areview application cannot be said to be ex facie badin law. Section 114 of the Code empowers a courtto review its order if the conditions precedents laiddown therein are satisfied. The substantiveprovision of law does not prescribe any limitationon the power of the court except those which areexpressly provided in Section 114 of the Code interms whereof it is empowered to make such orderas it thinks fit. 89. Order 47, Rule 1 of the Code provides for filingan application for review. Such an application forreview would be maintainable not only upondiscovery of a new and important piece of evidenceor when there exists an error apparent on the faceof the record but also if the same is necessitatedon account of some mistake or for any othersufficientreason. 90. Thus, a mistake on the part of the court whichwould include a mistake in the nature of theundertaking may also call for a review of the order.An application for review would also bemaintainable if there exists sufficient reasontherefore. What would constitute sufficient reasonwould depend on the facts and circumstances ofthe case. The words 'sufficient reason' in Order 47,Rule 1 of the Code is wide enough to include amisconception of fact or law by a court or even anAdvocate. An application for review may benecessitated by way of invoking the doctrine "actuscuriae neminem gravabit". 3.Another decision of Calcutta High Court in the case of Mahamaya Banerjee reported in AIR 1989 Cal 106 wherein it hasbeen held as under:- 90. Thus, a mistake on the part of the court whichwould include a mistake in the nature of theundertaking may also call for a review of the order.An application for review would also bemaintainable if there exists sufficient reasontherefore. What would constitute sufficient reasonwould depend on the facts and circumstances ofthe case. The words 'sufficient reason' in Order 47,Rule 1 of the Code is wide enough to include amisconception of fact or law by a court or even anAdvocate. An application for review may benecessitated by way of invoking the doctrine "actuscuriae neminem gravabit". 3.Another decision of Calcutta High Court in the case of Mahamaya Banerjee reported in AIR 1989 Cal 106 wherein it hasbeen held as under:- “5. Though in the application filed under Section151 of the Code, along with its amendment, thepetitioner prayed for setting aside the order datedJune 16, 1984 rejecting the application for review and the order dated April 25, 1981 dismissing theMisc. Case registered on the application underOrder 9, Rule 13 of the Code after reviewing theabove two orders, the application was not intituledas one under Order 47, Rule 1 of the Code. In fact,considering the nature of relief sought for theabove rule had no manner of application in thefacts and circumstances of the instant case. As hasbeen already noticed, the principal ground whichwas canvassed for setting aside the above orderswas that whatever steps she had taken earlier inconnection with the suit was under wrong advice ofher Advocate; and as we have already noticed, thetestimony of the learned Advocate also supportsthat view. By filing the application, therefore, thepetitioner prayed for justice which was denied toher owing to patently wrong steps taken by herunder legal advice. In such a situation the Courtwould be failing in its duty if it does not invoke itsinherent powers to come to her rescue. EveryCourt functions for the purpose of doing justiceaccording to law and therefore shall be deemed topossess, as a necessary corollary thereto, all suchpowers as may be necessary to do the right and toundo a wrong in course of its such functioning. Asexercise of inherent power is provoked by necessityits operational field and sphere can neither be welldefined nor circumscribed. It is also not desirableto put such a wholesome and salutary power in astrait-jacket. Therefore, so long as it is nottrammelled or trampled by any express statutoryprovision inherent power may be invoked andexercised to meet any judicial exigency. 6. In absence of any legislative inhibition to theexercise of the inherent power in the facts andcircumstances of the instant case we thereforeallow the application under Section 151 of the Codeof Civil Procedure, as amended, and set aside theOrder No. 56 dated April 25, 1981 dismissing theMisc. Case No. 15 of 1979. The learned trial Judgeis hereby directed to proceed with the above Misc.Case in accordance with law. In view of thisdirection no order is necessary in respect of Misc.Case No. 9 of 1983.” 4.He has contended that some of the questions which wereraised were not answered by the Court, when the matters weretaken in December, 2016. 6. In absence of any legislative inhibition to theexercise of the inherent power in the facts andcircumstances of the instant case we thereforeallow the application under Section 151 of the Codeof Civil Procedure, as amended, and set aside theOrder No. 56 dated April 25, 1981 dismissing theMisc. Case No. 15 of 1979. The learned trial Judgeis hereby directed to proceed with the above Misc.Case in accordance with law. In view of thisdirection no order is necessary in respect of Misc.Case No. 9 of 1983.” 4.He has contended that some of the questions which wereraised were not answered by the Court, when the matters weretaken in December, 2016. 5.After taking over the charge of this Court, speaking formyself I made an endeavor that the matters which are comingfrom 1981 to 2012 are to be taken up on priority basis. Since thematter was adjourned time and again and was restored on 26[th]August, 2016 since earlier it was disposed off on the ground ofcovered by the circular, when the matter was called out inDecember, 2016, the only argument which was canvassed bycounsel for the appellant-petitioner who has filed these reviewapplications was that the matter was pending before the SupremeCourt therefore, relying on the contention the appeals weredecided subject to decision of the Supreme Court in the pendingmatters and parties were directed to be governed by the samedecision. Now to allow to raise the contention which was raised atthe time of argument is not the very basis of the provisions ofOrder 47 Rule 1 CPC because if it is allowed to stand, then therewill be no finality of any judgment. 6.Counsel himself has pointed out and then take the matter inreview, the judge will never be in a position to dispose off thematter in any manner. 7.In that view of the matter, in view of the larger interest ofthe institution when we are blamed for the large pendency ofcases, I would not like to be a party to this practice in anymanner. 8.Hence, the review petitions stands dismissed. (INDERJEET SINGH)J. (K.S.JHAVERI)J. A.Sharma/119-123