Commissioner Of Income Tax, Haldwani Nainital v. M/S All Saints College Society Nainital …

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Delay Condonation Application No.13362 of 2014 in Review Application No.868 of 2014 in Income Tax Appeal No.282 of 2007 Commissioner of Income Tax, Haldwani Nainital … Appellant vs. M/s All Saints College Society Nainital … Respondent AND Delay Condonation Application No.13365 of 2014 in Review Application No.871 of 2014 in Income Tax Appeal No.283 of 2007 Commissioner of Income Tax, Haldwani Nainital … Appellant vs. M/s Sherwood Diocesan College Society Nainital … Respondent AND Delay Condonation Application No.13364 of 2014 in Review Application No.870 of 2014 in Income Tax Appeal No.284 of 2007 Commissioner of Income Tax, Haldwani Nainital … Appellant vs. M/s Sherwood Diocesan College Society Nainital … Respondent AND Delay Condonation Application No.13367 of 2014 in Review Application No.873 of 2014 in Income Tax Appeal No.285 of 2007 Commissioner of Income Tax, Haldwani Nainital … Appellant vs. M/s Sherwood Diocesan College Society Nainital … Respondent AND Delay Condonation Application No.13366 of 2014 in Review Application No.872 of 2014 in Income Tax Appeal No.286 of 2007 Commissioner of Income Tax, Haldwani Nainital … Appellant vs. M/s Sherwood Diocesan College Society Nainital … Respondent AND Delay Condonation Application No.13361 of 2014 in Review Application No.867 of 2014 in Income Tax Appeal No.287 of 2007 Commissioner of Income Tax, Haldwani Nainital … Appellant vs. M/s All Saints College Society Nainital … Respondent AND Delay Condonation Application No.13360 of 2014 in Review Application No.866 of 2014 in Income Tax Appeal No.41 of 2008 Commissioner of Income Tax, Haldwani Nainital … Appellant vs. M/s All Saints College Society Nainital … Respondent AND Delay Condonation Application No.13363 of 2014 in Review Application No.869 of 2014 in Income Tax Appeal No.42 of 2008 Commissioner of Income Tax, Haldwani Nainital … Appellant vs. M/s All Saints College Society Nainital … Respondent Mr. H. M. Bhatia, Advocate present for the review applicant. Mr. Mohit Maulekhi, Advocate present for the assesses / respondents. JUDGMENT Coram : Hon’ble K.M. Joseph, C.J. Hon’ble U. C. Dhyani, J. U. C. Dhyani, J. (Oral) 1.Since all the aforesaid Review Applications arise out of the same judgment, therefore, they are being decided by this common judgment for the sake of brevity and convenience. 2.There is delay of 671 days in filing the review applications. The same is vehemently opposed by learned counsel for the assessees. The reasons assigned for the delay in filing the review applications are reproduced hereinbelow for convenience: “1. That the impugned judgment under review was passed by this Hon’ble Court on 17.12.2012 on the appeal filed by the income tax department against the judgment passed by the learned I.T.A.T. 2. That after the order passed by this Hon’ble Court on 17.12.2012 the counsel for the appellant obtained the certified copy of the order dated 17.12.2012 and sent to the office of Commissioner of Income Tax, Haldwani on 28.12.2012 alongwith legal opinion in the matter. 3. That after considering the matter by the appellant, the file was sent to the concerned AO, who wrote the letter to the CIT, Haldwani with regard to consideration for withdrawal of Registration of certificate under Section 12-A of the Income Tax Act and filing of SLP before the Hon’ble Supreme Court on 28.02.2013. 4. That thereafter on 21.03.2013 the Assessing Officer again wrote the letter for withdrawal of certificate under Section 12-A of the Income Tax Act, 1961 in view of the order passed by the Hon’ble High Court dated 17.12.2012. 2. That after the order passed by this Hon’ble Court on 17.12.2012 the counsel for the appellant obtained the certified copy of the order dated 17.12.2012 and sent to the office of Commissioner of Income Tax, Haldwani on 28.12.2012 alongwith legal opinion in the matter. 3. That after considering the matter by the appellant, the file was sent to the concerned AO, who wrote the letter to the CIT, Haldwani with regard to consideration for withdrawal of Registration of certificate under Section 12-A of the Income Tax Act and filing of SLP before the Hon’ble Supreme Court on 28.02.2013. 4. That thereafter on 21.03.2013 the Assessing Officer again wrote the letter for withdrawal of certificate under Section 12-A of the Income Tax Act, 1961 in view of the order passed by the Hon’ble High Court dated 17.12.2012. 5. That thereafter on 18.04.2013, the Commissioner of Income Tax, Haldwani dropped the proceedings for withdrawal of the certificate given under section 12-A of the Act. 6. That thereafter on 13.05.2014, the ITAT in the matter of Sherwood Diocesan College Society passed the judgment against the department and relied upon the judgment under review by the tribunal as the judgment of jurisdictional High Court. 7. That the department has preferred the appeal before the Hon’ble High Court against the judgment dated 13.05.2014 within time limitation on 12.11. 2014. 8. That thereafter the CCIT, Dehradun given approval to the CIT, Haldwani for filing the review application(MA) before the Hon’ble Court and on 14.12.2014 the Income Tax Officer (Hq/Tec) sent the letter to the present counsel for filing the accompanying application before the Hon’ble Court.” 3.Being satisfied with the sufficiency of foregoing reasons thus furnished in support thereof, delay in filing the review applications is condoned. Delay condonation applications are, therefore, allowed. 4.Learned counsel for the assesses/respondents placed reliance upon a decision of Hon’ble High Court of Bombay in Commissioner of Income Tax vs. West Coast Paper Mills Ltd. (2009) 319 ITR 390 (Bom.) to argue that the review against the judgment under Section 260A of the Income Tax Act, 1961 is not maintainable. 5.Learned counsel for the respondents further relied upon a decision of Hon’ble Supreme Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal & others, 1980 (Supp) SCC 420, wherein it was held : “13. We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Patel Narshi Thakershi v. Pradyumansinghji (1971) 3 SCC 844is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of Section 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act. While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in Section. 11. The answer to the question is, therefore, to be found in sub-Section (1) of s. 11 and not in sub-Section (3) of Section 11. Furthermore, different considerations arise on review. The expression 'review' is used in two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Patel Narshi Thakershi's case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal.” 6.Learned counsel for the revenue/review applicant, thereafter, relied upon a Full Bench decision of Hon’ble Patna High Court in M/s D. N. Singh vs. Commissioner of Income Tax, Central, Patna & another, 2010 (2) PLJR 1059, which, in turn, placed reliance upon a judgment of Hon’ble Supreme Court in M. M. Thomas vs. State of Kerala, (2000) 1 SCC 666, in which, it was held as follows: “14. The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. The court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, the High Court has not only the power, but a duty to correct any apparent error in respect of any order passed by it. This is the plenary power of the High Court. 17. If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record.” 7.It was, therefore, concluded in D. N. Singh’s case (supra) as follows: “12. In view of the aforesaid clear pronouncement of law, we have no scintilla of doubt that the High Court can entertain the application for review arising out of a judgment passed under Section 260A of the Act.” 8.Learned counsel for the review applicant also placed a judgment of Hon’ble Gujarat High Court in Jolly Polymers vs. Commissioner of Income Tax, (2015) 1 GLH 343, which concluded that the principles analogous to those flowing from Section 21 of CPC are applied to various situations not only to the proceedings arising out of the Code but also in special statues. There is no reason to limit its application to review proceedings. 9.It was further held in Jolly’s case (supra) : “4.12 In view of our above discussion, we would adopt the view of the Full Bench judgment of the Patna High Court in case of D.N. Singh (supra). We have also given our own independent reasons. We may record that the Patna High Court had not relied upon Section 260A(7) of the Act, which in our opinion, is an additional ground to believe that the High Court does enjoy the power of review not only as a constitutional Court, but as specifically vested by virtue of sub-Section (7) of Section 260A.” 10.In the light of above, we are inclined to hold, and accordingly hold, that the review applications are maintainable to correct the errors apparent on the face of record. 9.It was further held in Jolly’s case (supra) : “4.12 In view of our above discussion, we would adopt the view of the Full Bench judgment of the Patna High Court in case of D.N. Singh (supra). We have also given our own independent reasons. We may record that the Patna High Court had not relied upon Section 260A(7) of the Act, which in our opinion, is an additional ground to believe that the High Court does enjoy the power of review not only as a constitutional Court, but as specifically vested by virtue of sub-Section (7) of Section 260A.” 10.In the light of above, we are inclined to hold, and accordingly hold, that the review applications are maintainable to correct the errors apparent on the face of record. 11.Although, many a grounds have been taken by the review applicant, but we have not been persuaded by learned counsel for the review-applicant to take a view that there is an error apparent on the face of record to justify the review applications. All the aforesaid review applications are, therefore, dismissed. (U. C. Dhyani, J.) (K.M. Joseph, C.J.) Dated 28[th] August, 2015 Rawat