M/S D. N.singh, A Partnership Firm v. The Commissioner Of Income Tax, Central, Patna

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Review No.102 of 2009 ====================================================== M/S D. N.SINGH, a partnership firm having its place of business at SunilBhawan, Mohanpur, Punaichak, P.O. and P.S. Shastrinagar in the town anddistrict of Patna through its partner Sri Dudheshwar Nath Singh ... Appellant ... Petitioner/s Versus 1.The Commissioner Of Income Tax, Central, Patna 2.The Assistant Commissioner of Income Tax, Central Circle 4, Patna ... ... Respondent/s ====================================================== Appearance : ====================================================== CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN and HONOURABLE MR. JUSTICE S. KUMARORAL JUDGMENT(Per: HONOURABLE DR. JUSTICE RAVI RANJAN) Date : 18-12-2017 Heard parties. This review application is directed against the judgmentdated 05.03.2009 passed by a Division Bench of this Court inM.A. No.214 of 2002, whereby and whereunder, the DivisionBench had dismissed the appeal filed by the review petitioner. Thereview petitioner preferred M.A. No.214 of 2002 against the order dated 11.01.2002 passed by the Income Tax Appellate Tribunal,Patna Branch, Patna in ITA No.240/Pat/2001 for the assessmentyear 1995-96 reversing the order passed by the CIT(A)-II, Patna inITA No. 166/PAT/A-II/99-2000 dated 18.12.2000. The genesis of the dispute is return filed by the assesseeon 31.10.1996 disclosing total income of Rs.5,76,133/- from thecarriage contract. The case was selected for scrutiny and noticesunder Sections 143(2) and 142(1) of the Income Tax Act wereissued. The assessing officer, after hearing the assessee, came tothe conclusion that he is required to further pay a sum ofRs.1,04,72,720.30 which was value of bitumen short supplied bythe assessee to the Road Construction Department, Government ofBihar. The assessee preferred appeal before the Commissioner(Appeals) against the aforesaid order of the assessing officer whichwas allowed vide order dated 18.12.2000 and aforesaid additionalsum was deleted. The revenue preferred appeal before the PatnaBench of the Income Tax Tribunal against deletion of theadditional sum towards value of bitumen short supply. Theassessee also filed cross-objection. The Tribunal on appraisal ofthe materials available on record came to the followingconclusions:- “In pursuance of the said show-cause notice, the assessee filed photocopies of delivery challans, claiming that it had made full delivery tothe respective divisions. While adjudicating theappeal In ITA No.358(Patna)2000 decided on11.012002, we had an opportunity to appreciate thefacts in this regard. We formed an opinion that thephotocopies of the delivery challan were false andfabricated. We further came to the conclusion thatthe admission made by various junior engineers,was clarified and the explanation made by themwas that bitumen supplied was short and thedelivery was not in consonance with the orders, onthe strength of which the goods were lifted fromthe various companies located at Haldia. Here inthis case too the assessee no where disputes thequantity of the goods lifted by it from variouscompanies at Haldia. It has not been disputed thatbitumen weighing 10000.77 I.T. was lifted by itfrom Haldia. Its claim that full supply was madestands demolished when photocopies of deliverychallans were found to be false and fabricated. AllExecutive Engineers asserted that delivery to thetune of 8206.2 MT of bitumen was made to theirrespective divisions. They had confirmed non-delivery to the tune of 2090.40 MT by the assessee.In such a situation the Act was justified in adding asum of Rs.1,04,71.720 to the income of theassessee under the provisions of Section 69A of theAct.” Aggrieved by the aforesaid, the assessee, i.e., the reviewpetitioner preferred miscellaneous appeal under Section 260 A ofthe Income Tax Act, 1961. On appraisal of the materials on record, Aggrieved by the aforesaid, the assessee, i.e., the reviewpetitioner preferred miscellaneous appeal under Section 260 A ofthe Income Tax Act, 1961. On appraisal of the materials on record, following substantial questions of law were formulated by thecourt. 1. “Whether on the facts and in thecircumstances of the appellant’s case confirmationof addition u/s 69A amounting to Rs.1,04,71,720 islegal and valid? 2. Whether the addition amounting toRs.1,04,71,720 could at all be sustained in absenceof condition precedent for invoking Section 69A ofthe I.T. Act? 3. Whether the Tribunal is justified insustaining the addition of Rs.1,04,71,720 u/s 69Aon account of short supply of bitumen in the handsof the appellant who is merely a transporter of thegoods?” The questions were answered in favour of revenue andagainst the appellant/review petitioner. Now, the present application has been filed for review ofthe judgment passed in appeal. First of all, several decisions were cited by Mr. Y. V. Giri,learned Sr. counsel appearing for the review petitioner regardingambit and scope of the review of the appellate order under theIncome Tax Act. For example Patel Narshi Thakershi and othersV. Pradyumansinghji Arjunsinghji [AIR 1970 Supreme Court1273], Naresh Shridhar Mirajkar V. State of Maharashtra and another and other analogous matters [AIR 1967 SupremeCourt 1], M. M. Thomas Versus State of Kerala and another[(2000) 1 Supreme Court Cases 666] and Commissioner ofCustoms and Central Excise Versus Hongo India PrivateLimited and another [(2009) 5 Supreme Court Cases 791]. So far maintainability of the review application isconcerned, the Full Bench of this Court vide order dated26.04.2010 passed in this review application itself has held that theHigh Court, being the court of superior jurisdiction and a Court ofrecord, can entertain application for review arising out of judgmentpassed under Section 260 A of the Income Tax Act. A question arose that what would be the ambit and scopeof such review. Whether it can be equivalent to the jurisdictionexercised by the court in appeal? The Hon’ble Supreme Court inUsha Bharti Versus State of Uttar Pradesh and Others [(2014)7 Supreme Court Cases 663] has held that in exercise of powerof review, the High Court can even reopen the case and rehear theentire matter but such power cannot be oblivious of the provisionscontained in Order 47 Rule 1 CPC and the rules framed by theHigh Courts. Their Lordships quoted paragraph 19 from thejudgment of the Apex Court rendered in S. Nagaraj V. State ofKarnataka [1993 Supp (4) SCC 595]. It has been held therein that review literally and even judicially means re-examination orreconsideration. Basic philosophy inherent in it is the universalacceptance of human fallibility. Yet in the realm of law the courtsand even the statutes lean strongly in favour of finality of decisionlegally and properly made. Exceptions both statutorily andjudicially have been carved out to correct accidental mistakes ormiscarriage of justice. Similar view has been taken by the Hon’bleSupreme Court in yet another decision rendered in Sasi (Dead)through legal representatives Versus Aravindakshan Nair andOthers [2017(4) Supreme Court Cases 692]. It has been held,referring the earlier decision rendered by the Apex Court, that areview is by no means an appeal in disguise whereby an erroneousdecision is reheard and corrected but lies only for patent error.Almost similar view has been taken by the Hon’ble Supreme Courtin other decisions also. The Division Bench has laid down its clearview on each question of law which was formulated afterconsidering the submissions made and the decisions cited onbehalf of the appellant. Mr. Y. V. Giri, learned Sr. counsel appearing for thereview petitioner has tried to impress upon this Court thatconclusion reached by the Division Bench was wrong and on the Mr. Y. V. Giri, learned Sr. counsel appearing for thereview petitioner has tried to impress upon this Court thatconclusion reached by the Division Bench was wrong and on the basis of the facts and the materials available on record, the Courtshould have reached to another conclusion. In our view, this is not the ambit and scope of the review.It has been held by the Apex Court in Sasi (Dead) through legalrepresentatives (Supra) that a review is by no means an appealin disguise whereby an erroneous decision is reheard and correctedbut lies only for patent error apparent on record. Much emphasis was laid by learned counsel for thereview petitioner that the appellate tribunal, in separate appealsfiled by the review petitioner itself, however, for the differentassessment years has taken a different view in both the appeals. Itis stated that for the assessment year 1996-97, on the same set offacts, it has allowed the appeal on the same date, whereas, for theyear 1995-96 it has remanded back the matter to the assessingofficer. However, the question would be whether the fact that theappellate tribunal had passed another order correctly or incorrectly,the same may have any effect rendering the judgment of thetribunal passed in present matter to be erroneous despite the samehaving been upheld in appeal by this Court? Answer has to be innegative. For the assessment year 1995-96, matter has attainedfinality as the Division Bench has already accepted the view of the appellate tribunal to be correct in M.A. No.214 of 2002. The viewof the same Tribunal or the same Bench of the Tribunal wascorrect or incorrect for a different assessment year was not thesubject matter of the appeal. If one of the views of the appellatetribunal is in favour of the assessee that does not mean that thesaid view would be correct and the view taken in the present casewas incorrect. The view formed by the revenue in the present casefor the assessment year 1995-96 has been scrutinized not only bythe appellate tribunal but also by the Division Bench of this Courtand the same has been found to be correct. Thus, in our view, that cannot be held to be a patent erroron the face of the record, thus, the same would not come to thehelp of the review petitioner. We could not be persuaded toreverse the finding recorded by the Division Bench for the reasonthat for the same assessee but for the different assessment year,same Bench of tribunal has accepted their plea regarding shortsupply of bitumen as it is not within the knowledge as to whetherthat case travelled in appeal before this Court or not, whereas, thedecision rendered by the appellate tribunal for the assessment year1995-96 travelled up to this Court in M.A. No.214 of 2002. Thesubstantial questions were formulated and all of them have beenanswered against the assessee. As a result, this review application, being devoid of merit, fails and is, accordingly, dismissed. (Dr. Ravi Ranjan, J) Sanjay/- ( S. Kumar, J) AFR/NAFRNAFRCAV DATENAUploading Date08.01.2018Transmission DateNA