Panaji Goa v. Cortalim Shipyard And Engineers

IN THE HIGH COURT OF BOMBAY AT GOA CIVIL APPLICATION(REVIEW) NO. 25 OF 2010 IN TAX APPEAL NO. 8 OF 2006 The Commissioner of Income Tax, Panaji Goa. ... Applicant versus Cortalim Shipyard and Engineers Pvt. Ltd., Margao Goa. ... Respondent Smt. Asha Dessai, Advocate for the Applicant. Shri M. S. Sonak, Advocate for the Respondent. CORAM : S. C. DHARMADHIKARI & F. M. REIS, JJ. DATE : 5TH APRIL, 2011. P.C.:- The Revenue seeks review of the Judgment and Order passed by this Court in Tax Appeal No.8 of 2006 dated 9th September, 2010. 2.Assuming for the sake of arguments and proceeding on the basis that review jurisdiction is available to review the Judgment in question, we are not impressed with the arguments of the learned Counsel appearing for the Applicant that the Division Bench Judgment needs to be reviewed because there is an error apparent on the face of the record. 3.Learned Counsel appearing for the Applicant submits that the Judgment of the Division Bench proceeds on a fallacious basis that Section 115-J and Section 115-JA of the Income Tax Act are one and the same. Therefore, the Division Bench erroneously relied upon the Judgment of the Karnataka High Court in the case of Kwality Biscuits Ltd. v. CIT reported in ((2000) 243 ITR 519) which Judgment according to the Division Bench stands affirmed by the Supreme Court in CIT v. Kwality Biscuits Ltd. ((2006) 284 ITR 434). 4.It is submitted that the Division Bench of this Court in the present Judgment and in the latter Judgment have erroneously applied the Judgment of the Karnataka High Court in the case of Kwality Biscuits Ltd. v. CIT(supra) and there is a vast difference between the two statutory provisions. 5.Further, the entire issue now stands clarified by the Supreme Court Judgment in the case of Jt. C.I.T., Mumbai v. M/s Rolta India Ltd.(Civil Appeal No.135 of 2011) and connected appeals decided on 7-1-2011. 6.We are afraid that these are not errors apparent on the face of the record. The arguments of the learned Counsel appearing for the Revenue to be considered, would require us to go into an elaborate process and virtually set at naught a Division Bench Judgment by holding that it proceeds on an erroneous factual basis. If all this is to be considered, then, review is not the remedy. This is not equivalent to appellate or revisional jurisdiction which permits such an exercise. 7. The Hon'ble Supreme Court in the decision reported in Haridas Das v. Smt. Usha Rani Banik & others(AIR 2006 SC 1634) has held that the review jurisdiction is to be exercised in limited cases and in that behalf cautioned as under:- "13. In order to appreciate the scope of a review, Section 114 of the CPC has to be read, but this section does not even adumbrate 7. The Hon'ble Supreme Court in the decision reported in Haridas Das v. Smt. Usha Rani Banik & others(AIR 2006 SC 1634) has held that the review jurisdiction is to be exercised in limited cases and in that behalf cautioned as under:- "13. In order to appreciate the scope of a review, Section 114 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit." The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order XLVII which states that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. This Court in M/s. Thungabhadra Industries Ltd. (in all the Appeals) v. the Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, held as follows: "There is a distinction which is real, though it might not always be capable of exposition, betweena mere erroneous decision and a decision which could be characterized as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out". 14. In Meera Bhanja v. Smt.Nirmala Kumari Choudary it was held that: "It is well settled law that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, CPC. In connection with the limitation of the powers of the Court under Order XLVII, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. AribamPishak Sharma speaking throughChinnappa Reddy, J. has made the following pertinent observations: It is true there is nothing in "It is well settled law that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, CPC. In connection with the limitation of the powers of the Court under Order XLVII, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. AribamPishak Sharma speaking throughChinnappa Reddy, J. has made the following pertinent observations: It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of reviewwas not within the knowledge of the the order was made; it may be exercisedground. But, it may not be exercised on may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence person seeking the review or could not be produced by him at the time when where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous the ground that the decision was erroneous on merit. That would be in the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of error committed by the Subordinate Court." 8.Applying these principles to the facts of the instant case, we are of the opinion that the review application is misconceived and not maintainable because the Revenue desires that in the garb of review we exercise an appellate jurisdiction and that is impermissible in law. Review application is therefore dismissed. S. C. DHARMADHIKARI, J. F. M. REIS, J. RD