Keeping In View The Scope Of Judicial Review While Scrutinizing Anotice Issued Under Section 148 Of The Income Tax Act As Explained Inraymond Woolen Mills Ltd v. The Petitioner Had Filed An Application For Review Of The Ordermainly On The Grounds That It Has Not Received Any Payment From Its

Court No. - 2 Case :- CIVIL MISC REVIEW APPLICATION No. - 119 of 2022Applicant :- Distributors India Logistics Lko. Thru. its Partner (In Wtax 45 Of 2022) Opposite Party :- Union Of India Thru. Its Secy. Finance Ministry Of Finance Deptt. Of Revenue, New Delhi And OthersCounsel for Applicant :- Shailesh Verma Counsel for Opposite Party :- A.S.G.I.,Manish Misra Hon'ble Devendra Kumar Upadhyaya,J.Hon'ble Subhash Vidyarthi,J. 1.Heard Sri Desh Deepak Chopra, learned Senior Advocate assistedby Sri Shailesh Verma, Advocate, the learned counsel for the review-applicant and Sri Manish Misra, Advocate, the learned counsel for therespondents. 2.The instant application has been filed for review of the judgmentand order dated 20.04.2022 passed in Writ Tax No. 45 of 2022 wherebythe writ petition was dismissed. 3.The aforesaid writ petition had been filed by the petitionerchallenging the validity of a notice dated 26.03.2021 issued under Section148 of the Income Tax Act, 1961 as also the reassessment proceedingsinitiated in furtherance of the aforesaid notice. 4.Upon our direction, the learned counsel for the Income TaxDepartment has produced the original record of the department, whichcontained the reasons recorded for initiation of the re-assessmentproceedings and it was mentioned therein that the assessee had filed itsreturn of income at Rs.9,62,130/- in its Profit and Loss account, thepetitioner had disclosed commission income of Rs.2,50,58,983/- andinterest income of Rs. 10,69,452/-; thus, the total receipts of the petitioner,as per the Profit and Loss account were Rs.2,61,28,435/-. However, thepetitioner’s total receipts under Sections 194 A, 194 C, 194 H, 194 I and194 J, as per statement under Section 26AS are Rs.5,23,84,738/- and, 2 therefore, there is a difference of Rs. 2,62,56,303/- in the receipt shownby the petitioner. The reasons recorded further state that during theassessment proceedings the assessee was asked to explain thediscrepancies but it gave no explanation for the payments received underSection 194 I and 194 J and it did not disclose the amount claimedtowards reimbursement of expenses and amount received by it towardsreimbursement. The reasons further state that the petitioner did not submitthe details of expenses incurred by it on behalf of the principle and it didnot produced any ledger, bills and vouchers of expenses incurred by it onbehalf of the principal company and for the aforesaid reasons, theassessing authority came to a conclusion that the petitioner had not trulyand fully disclosed all material facts necessary for the assessment, therebynecessitated reassessment under Section 147 of the Act. 5.Keeping in view the scope of judicial review while scrutinizing anotice issued under Section 148 of the Income Tax Act as explained inRaymond woolen Mills Ltd. Versus I.T.O., (1999) 236 ITR 36 (SC), Raymond Woollen Mills Ltd. v. ITO, (2008) 14 SCC 218, PhoolChand Bajrang Lal v. ITO,(1993) 4 SCC 77 and Srikrishna (P) Ltd. v.ITO, (1996) 9 SCC 534, this Court had held that the notice under Section148 of the Act has been issued after conducting an investigation, goingthrough the relevant documents of the petitioner and after recording areason to believe that the petitioner had not truly and fully disclosed allthe material facts, because of which income amounting to Rs.2,62,56,303/- has escaped assessment. Therefore, there was prima faciematerial available before the assessing officer for issuing the notice underSection 148 of the Act and this Court cannot go into the sufficiency orcorrectness of the material while exercising its jurisdiction under Article226 of the Constitution of India. For the aforesaid reasons, the writpetition filed for quashing of the notice issued under Section 148 of theAct as well as consequential proceedings was dismissed. 6.The petitioner had filed an application for review of the ordermainly on the grounds that it has not received any payment from its 3 6.The petitioner had filed an application for review of the ordermainly on the grounds that it has not received any payment from its 3 principle on which tax has been deducted at source under Section 194 Iand 194 J; the reasons recorded by the Assessing Officer contains nomention of the disclosure of the amount of reimbursement of expensesclaimed by the petitioner, and therefore, the question of reimbursement ofexpenses and its non disclosure does not arise; the figure of Rs.5,40,88,356/- alleged to have been received through commission and Rs.24,64,404/- alleged to be TDS do not appear in 26AS and the same areimaginary figure. 7.It has also been contended that the judgment in the case ofRaymond Woolen Mills Ltd. (supra) is case specific and it cannot beapplied to the case of the petitioner and the judgment in Phool ChandBajrang Lal (supra) supports the petitioner's contention that to initiatereassessment proceedings, the Assessing Officer must have some tangiblematerial before him before proceeding to initiate the reimbursement underSection 147 of the Act. 8.The judgment passed by this Court has also been sought to bereviewed on the ground that various case laws relied upon by thepetitioner in support of its claim have not been considered by this Court. 9.Before proceeding to examine the submissions of the learnedCounsel for the review-petitioner, it would be appropriate to have a lookat the scope of review. It is settled law that review cannot be treated as anappeal and a re-hearing of the matter is not allowed in the name of areview of the judgment. Review of a judgment can be sought only theground that it suffers from an “error apparent on the face of the record”.The meaning of the expression “error apparent on the face of the record”has been explained by the Hon’ble Supreme Court in various decisions,some of are being referred hereinbelow. 10.In Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC170, the Hon’ble Supreme Court explained the term “error apparent on theface of the record” in the following words: - 4 “an error apparent on the face of record must be such an error whichmust strike one on mere looking at the record and would not requireany long-drawn process of reasoning on points where there mayconceivably be two opinions. We may usefully refer to the observationsof this Court in the case of Satyanarayan Laxminarayan Hegde v.Mallikarjun Bhavanappa Tirumale AIR 1960 SC 137, wherein, K.C. DasGupta, J., speaking for the Court has made the following observations inconnection with an error apparent on the face of the record: An error which has to be established by a long-drawn process ofreasoning on points where there may conceivably be two opinions canhardly be said to be an error apparent on the face of the record. Wherean alleged error is far from self-evident and if it can be established, ithas to be established, by lengthy and complicated arguments, such anerror cannot be cured by a writ of certiorari according to the rulegoverning the powers of the superior court to issue such a writ.” (Emphasis Supplied) 11.In Perry Kansagra v. Smriti Madan Kansagra, (2019) 20 SCC753, the Hon’ble Supreme Court referred to the earlier decisions on thepoint and summarized the law on the subject in the following manner: - “15.1.In Inderchand Jain (2009) 14 SCC 663 it was observed in paras10, 11 and 33 as under: (SCC pp. 669 & 675) “10. It is beyond any doubt or dispute that the review court does not sitin appeal over its own order. A rehearing of the matter is impermissiblein law. It constitutes an exception to the general rule that once ajudgment is signed or pronounced, it should not be altered. It is alsotrite that exercise of inherent jurisdiction is not invoked for reviewingany order. 11. Review is not appeal in disguise. In Lily Thomas v. Union of India(2000) 6 SCC 224 this Court held: (SCC p. 251, para 56) 11.In Perry Kansagra v. Smriti Madan Kansagra, (2019) 20 SCC753, the Hon’ble Supreme Court referred to the earlier decisions on thepoint and summarized the law on the subject in the following manner: - “15.1.In Inderchand Jain (2009) 14 SCC 663 it was observed in paras10, 11 and 33 as under: (SCC pp. 669 & 675) “10. It is beyond any doubt or dispute that the review court does not sitin appeal over its own order. A rehearing of the matter is impermissiblein law. It constitutes an exception to the general rule that once ajudgment is signed or pronounced, it should not be altered. It is alsotrite that exercise of inherent jurisdiction is not invoked for reviewingany order. 11. Review is not appeal in disguise. In Lily Thomas v. Union of India(2000) 6 SCC 224 this Court held: (SCC p. 251, para 56) ‘56. It follows, therefore, that the power of review can be exercised forcorrection of a mistake but not to substitute a view. Such powers can beexercised within the limits of the statute dealing with the exercise ofpower. The review cannot be treated like an appeal in disguise.’ *** 33. The High Court had rightly noticed the review jurisdiction of thecourt, which is as under: ‘The law on the subject—exercise of power of review, as propounded bythe Apex Court and various other High Courts may be summarised ashereunder: 5 i. Review proceedings are not by way of appeal and have to be strictlyconfined to the scope and ambit of Order 47 Rule 1 CPC. ii.Power of review may be exercised when some mistake or errorapparent on the fact of record is found. But error on the face of recordmust be such an error which must strike one on mere looking at therecord and would not require any long-drawn process of reasoning onthe points where there may conceivably be two opinions. iii. Power of review may not be exercised on the ground that thedecision was erroneous on merits. iv. Power of review can also be exercised for any sufficient reason whichis wide enough to include a misconception of fact or law by a court oreven an advocate. v. An application for review may be necessitated by way of invoking thedoctrine actus curiae neminem gravabit.’ In our opinion, the principles of law enumerated by it, in the facts of thiscase, have wrongly been applied.” 15.2.In Ajit Kumar Rath(1999) 9 SCC 596, it was observed: (SCC p.608, para 29) “29. In review proceedings, the Tribunal deviated from theprinciples laid down above which, we must say, is whollyunjustified and exhibits a tendency to rewrite a judgment by whichthe controversy had been finally decided. This, we are constrainedto say, is not the scope of review under Section 22(3)(f) of theAdministrative Tribunals Act, 1985.…” 15.3.Similarly, in Parsion Devi (1997) 8 SCC 715 the principles weresummarised as under: (SCC p. 719, para 9) “9. Under Order 47 Rule 1 CPC a judgment may be open to reviewinter alia if there is a mistake or an error apparent on the face of therecord. An error which is not self-evident and has to be detected by aprocess of reasoning, can hardly be said to be an error apparent onthe face of the record justifying the court to exercise its power ofreview under Order 47 Rule 1 CPC. In exercise of the jurisdictionunder Order 47 Rule 1 CPC it is not permissible for an erroneousdecision to be “reheard and corrected”. A review petition, it must beremembered has a limited purpose and cannot be allowed to be “anappeal in disguise”.” 16.On the other hand, reliance was placed by the respondent on thedecision in BCCI v. Netaji Cricket Club(2005) 4 SCC 741 to submit thatexercise in review would be justified if there be misconception of fact orlaw. Para 90 of the said decision was to the following effect: (SCC p.765) 6 16.On the other hand, reliance was placed by the respondent on thedecision in BCCI v. Netaji Cricket Club(2005) 4 SCC 741 to submit thatexercise in review would be justified if there be misconception of fact orlaw. Para 90 of the said decision was to the following effect: (SCC p.765) 6 “90. Thus, a mistake on the part of the court which would include amistake in the nature of the undertaking may also call for a review ofthe order. An application for review would also be maintainable ifthere exists sufficient reason therefor. What would constitutesufficient reason would depend on the facts and circumstances of thecase. The words “sufficient reason” in Order 47 Rule 1 of the Codeare wide enough to include a misconception of fact or law by a courtor even an advocate. An application for review may be necessitatedby way of invoking the doctrine actus curiae neminem gravabit.” 17.We have gone through both the judgments of the High Court in theinstant case and considered rival submissions on the point. It is wellsettled that an error which is required to be detected by a process ofreasoning can hardly be said to be an error apparent on the face of therecord. To justify exercise of review jurisdiction, the error must be self-evident. Tested on this parameter, the exercise of jurisdiction in thepresent case was not correct. The exercise undertaken in the presentcase, in our considered view, was as if the High Court was sitting inappeal over the earlier decision dated 17-2-2017. Even assuming thatthere was no correct appreciation of facts and law in the earlierjudgment, the parties could be left to challenge the decision in anappeal. But the review was not a proper remedy at all. In our view, theHigh Court erred in entertaining the review petition and setting asidethe earlier view dated 17-2-2017.” (Emphasis Supplied) 12.Thus the scope of review is well settled through variouspronouncements of the Hon'ble Supreme Court that an application forreview does not lie for rehearing of the matter, review can only be soughton the ground of an error which is “apparent on the face of record” andfor an error to be “apparent on the face of record” it should not requireany long drawn process of reason and there cannot conceivably two viewsabout it. 13.Now we proceed to examine the grounds taken by the petitioner forseeking a review of the judgment passed by this Court so as to ascertainwhether this judgment sought to be reviewed suffers from any such erroras strikes on mere looking at the record and as would not require anylong-drawn process of reasoning for being established and regardingwhich there may not be conceivably be two opinions. 7 13.Now we proceed to examine the grounds taken by the petitioner forseeking a review of the judgment passed by this Court so as to ascertainwhether this judgment sought to be reviewed suffers from any such erroras strikes on mere looking at the record and as would not require anylong-drawn process of reasoning for being established and regardingwhich there may not be conceivably be two opinions. 7 14.In the judgment and order dated 20.04.2022 sought to be reviewed,all the submissions made by the learned counsel for the petitioner havebeen considered and dealt with including the submissions explaining thediscrepancy in 26AS and profit and loss account of the petitioner. We hadgone through the entire original record of the department and had foundthat the Assessing Officer has recorded his reason to believe that thepetitioner had not shown certain receipts in profit and loss account andhad not given any explanations for the same. It had not disclosed theamount of reimbursement of expenses claimed by it and actual amountreceived by it towards reimbursement. It had not submitted the details ofexpenses incurred and it had not produced any ledger, bills and vouchersof expenses during the assessment proceedings. Thus, the petitioner didnot make true and full disclosure of all material fact which relied for someincome having escaped assessment. This finding is recorded after athorough scrutiny of the record and after considering the rival submissionsmade on behalf of the respective parties; does not appear to suffer fromany error apparent on the face of the record. The petitioner's contentionthat it has not received any payment of which tax has been deducted atsource under Section 194 I and 194 J is a question of fact which cannot begone into by this Court either in writ proceedings or in review and thisquestion of fact can only be decided by the Assessing Officer and thepetitioner will have full opportunity to raise these factual contentionsbefore the Assessing Authority. Therefore, it is not a case where amiscarriage of justice may occasion to the petitioner by dismissal of theWrit Petition filed against the reassessment proceedings initiated by theAssessing Officer on the basis of reasons recorded indicating that he hasreason to believe that certain income of the petitioner has escapedassessment. 15.The next contention of the petitioner that even for the reasonsrecorded by the Assessing Officer there is no mention of non disclosure ofamount of reimbursement of expenses and in absence of any suchallegation, the question of reimbursement of expenses and question of non 8 disclosure of the reimbursement of expenses does not arise, also cannot beraised in review proceedings. After going through the original record, wehave recorded a categorical finding that the Assessing Officer hasrecorded his reason to believe that the petitioner had not disclosed theamount of reimbursement of expenses claimed by it and the actual amountreceived by it towards reimbursement; that it had not submitted the detailsof expenses incurred by it for verification during the assessmentproceedings and that it had not produced any ledger, bills and vouchers ofexpenses incurred on behalf of principal company and this finding doesnot appear to be suffering from any such error, as may be “apparent on theface of the record”. 8 disclosure of the reimbursement of expenses does not arise, also cannot beraised in review proceedings. After going through the original record, wehave recorded a categorical finding that the Assessing Officer hasrecorded his reason to believe that the petitioner had not disclosed theamount of reimbursement of expenses claimed by it and the actual amountreceived by it towards reimbursement; that it had not submitted the detailsof expenses incurred by it for verification during the assessmentproceedings and that it had not produced any ledger, bills and vouchers ofexpenses incurred on behalf of principal company and this finding doesnot appear to be suffering from any such error, as may be “apparent on theface of the record”. 16.The ratio of the judgments passed by the Hon'ble Supreme Court inthe cases of Raymond Woolen Mills Ltd. (1) and (2) (supra), is that at thestage of issuing a notice for reassessment, the court has only to seewhether there is prima facie some material on the basis of which, thedepartment could re-open the case; the sufficiency or correctness of thematerial is not a thing to be considered at this stage, and this ratio doesnot appear to be based on any peculiar facts so as to be not applicable tothe present case and the learned counsel for the petitioner could not pointout as to how the aforesaid ratio is based on any peculiar facts and itwould not apply to the present case. Therefore, we are unable to acceptthe submission of the learned Counsel for the petitioner that the judgmentin the case of Raymond Woolen Mills Ltd. (supra) is case specific and itcannot be applied to the case of the petitioner. 17.The next submission of learned counsel for the petitioner is that thejudgment in Phool Chand Bajrang Lal (supra) supports the view of thepetitioner that to initiate reassessment proceedings, the Assessing Officermust have some tangible material before him before initiatingreassessment proceedings under Section 147 of the Act which is not therein the present case. 18.The learned Counsel for the petitioner has also contended that theorder passed by the Hon’ble Supreme Court in Srikrishna (Pvt.) Ltd.versus I.T.O., (1996) 9 SCC 534 relied upon by this Court required thatthe assessee is under obligation to disclose the material facts and suchdisclosure should be full and true and the petitioner has made true and fulldisclosure of all material facts. 19.We are unable to accept this submission because in Phool ChandBajrang Lal (supra), the Hon'ble Supreme Court had held that thereassessment proceedings may be started either because of some fresh factcome into light which were not previously disclosed or some informationwith regard to the fact previously disclosed comes into light which intendsto expose untruthfulness of those facts. In the present case, thereassessment has been ordered upon discovery of apprehendeduntruthfulness of facts previously disclosed, and therefore, the judgmentin Phool Chand Bajrang Lal (supra) does not support the petitioner andas per the law laid down in Srikrishna (Supra), the reassessmentproceedings have rightly been initiated. As already been held by thisCourt the finding of the Assessing Officer that the petitioner had not madefull and true disclosure of all the material facts which relied in an incomeof Rs. 2,62,56,303/- having escaped assessment is based on reasons whichneed no interference by this Court in exercise of its jurisdiction underArticle 226 of the Constitution of India and we do not find any errorapparent on the face of record in the aforesaid finding. 20.The judgment passed by this Court has also been sought to bereviewed on the ground that various case laws relied upon by thepetitioner in support of its claim have not been considered by this Court.In the judgment sought to be reviewed, the judgments of Aventis PharmaLtd. versus ACIT, (2010) 323 ITR 570 (Bom), Arun Gupta versus Unionof India, (2015) 371 ITR 394 (All) and United Electrical Co. Ltd.versus Commissioner of Income Tax, (2002) 258 I.T.R. 317, cited by thelearned counsel for the petitioner have been referred to and dealt with.This Court is not obliged to refer to each and every judgment 10 forming part of a compilation of judgments submitted after conclusion oforal submissions, which judgments were not placed before the Courtduring oral submissions. Moreover, while deciding the writ petition, wehave referred to and relied upon the relevant case laws and it is not beensubmitted by the petitioner that in the judgment sought to be reviewed,the law applicable to the facts of the case has not been taken intoconsideration. Therefore, this submission also stands rejected. 21.For the reasons stated above, the instant application for review ofthe judgment and order dated 20.04.2022 lacks merit and is, accordinglydismissed. 22.However, there will be no order as to costs. Order Date :- 24.5.2022Jaswant