R.p v. Principal Chief Commissioner Ofincome Tax

HIGH COURT OF MADHYA PRADESH: BENCH AT INDORER.P. No.972/2019M/s PEB Steel Lloyd (India) Limited v/s Principal Chief Commissioner ofIncome Tax Indore, dated 13.12.2019 Shri Yogesh Kumar Mittal, learned counsel for thepetitioner. Ms. Veena Mandlik, learned counsel for therespondent. Heard on I.A. No.8175/2019, which is an applicationunder Section 5 of the Limitation Act for condonation ofdelay. As per office report, the petition is barred by 48 days. Keeping in view the reasons assigned in theapplication, I.A. No.8175/2019 stands allowed. Delay in thefiling the petition is hereby condoned. The petitioner before this Court has filed this presentpetition for reviewing the order dated 29.04.2019 passed bythis Court W.P. No.3813/2019. In the aforesaid case, this Court has arrived at aconclusion that it was the second application submitted bythe petitioner for compounding, and therefore, keeping inview the CBDT Circular dated 23.12.2014 this Court hasheld that the Principal Chief Commissioner, Income Taxwas justified in treating the subsequent application assecond application and in those circumstances, this Courthas declined to interfere in the matter. The petitioner has been levied compounding chargespayable @ 5% treating the same as second occasion. In the considered opinion of this Court, there is noerror apparent on the face of record warranting review, andtherefore, the present review petition deserves to be dismissed. The Apex Court in the case of Haridas Das Vs. UshaRani Bank (Smt) and Ors.,reported in(2006) 4 SCC 78 in paragraph 13 and 20 has held as under :- “13. In order to appreciate the scope of a review,Section 114 CPC has to be read, but this section doesnot even adumbrate the ambit of interferenceexpected of the court since it merely states that it“may make such order thereon as it thinks fit”. Theparameters are prescribed in Order 47 CPC and forthe purposes of this lis, permit the defendant to pressfor a rehearing “on account of some mistake or errorapparent on the face of the records or for any othersufficient reason”. The former part of the rule dealswith a situation attributable to the applicant, and thelatter to a jural action which is manifestly incorrect oron which two conclusions are not possible. Neither ofthem postulate a rehearing of the dispute because aparty had not highlighted all the aspects of the case orcould perhaps have argued them more forcefullyand/or cited binding precedents to the court andthereby enjoyed a favourable verdict. This is amplyevident from the Explanation to Rule 1 of Order 47which states that the fact that the decision on aquestion of law on which the judgment of the court isbased has been reversed or modified by thesubsequent decision of a superior court in any othercase, shall not be a ground for the review of suchjudgment. Where the order in question is appealablethe aggrieved party has adequate and efficaciousremedy and the court should exercise the power toreview its order with the greatest circumspection.This Court in Thungabhadra Industries Ltd. v. Govt.of A.P.[1]held as follows: (SCR p. 186) “[T]here is a distinction which is real, though it mightnot always be capable of exposition, between a mereerroneous decision and a decision which could becharacterised as vitiated by ‘error apparent’. A reviewis by no means an appeal in disguise whereby anerroneous decision is reheard and corrected, but liesonly for patent error. … where without any elaborateargument one could point to the error and say here isa substantial point of law which stares one in theface, and there could reasonably be no two opinionsentertained about it, a clear case of error apparent onthe face of the record would be made out.”20. When the aforesaid principles are applied to the “[T]here is a distinction which is real, though it mightnot always be capable of exposition, between a mereerroneous decision and a decision which could becharacterised as vitiated by ‘error apparent’. A reviewis by no means an appeal in disguise whereby anerroneous decision is reheard and corrected, but liesonly for patent error. … where without any elaborateargument one could point to the error and say here isa substantial point of law which stares one in theface, and there could reasonably be no two opinionsentertained about it, a clear case of error apparent onthe face of the record would be made out.”20. When the aforesaid principles are applied to the background facts of the present case, the position isclear that the High Court had clearly fallen in error inaccepting the prayer for review. First, the crucialquestion which according to the High Court wasnecessary to be adjudicated was the question whetherTitle Suit No. 201 of 1985 (sic 1 of 1986) was barredby the provisions of Order 2 Rule 2 CPC. Thisquestion arose in Title Suit No. 1 of 1986 and wasirrelevant so far as Title Suit No. 2 of 1987 isconcerned. Additionally, the High Court erred inholding that no prayer for leave under Order 2 Rule 2CPC was made in the plaint in Title Suit No. 201 of1985. The claim of oral agreement dated 19-8-1982 ismentioned in para 7 of the plaint, and at the end ofthe plaint it has been noted that the right to institutethe suit for specific performance was reserved. Thatbeing so, the High Court has erroneously held aboutinfraction of Order 2 Rule 2 CPC. This was not a casewhere Order 2 Rule 2 CPC has any application.” In the aforesaid case, the Apex Court has held thatrehearing of a case can be done on account of some mistakeor an error apparent on the face of the record or for anyother sufficient reason. In the present case, there is no errorapparent on the face of the record and the petitioner in factunder the guise of review is challenging the order passed bythis Court, which is under review. Similarly the Apex Courtin the case of State of West Bengal and Ors. Vs. KamalSengupta and Anr., reported in (2008) 8 SCC 612 inparagraphs 21, 22 and 35 has held as under:- “21. At this stage it is apposite to observe that wherea review is sought on the ground of discovery of newmatter or evidence, such matter or evidence must berelevant and must be of such a character that if thesame had been produced, it might have altered thejudgment. In other words, mere discovery of new orimportant matter or evidence is not sufficient groundfor review ex debito justitiae. Not only this, the partyseeking review has also to show that such additionalmatter or evidence was not within its knowledge andeven after the exercise of due diligence, the samecould not be produced before the court earlier. 22. The term “mistake or error apparent” by its veryconnotation signifies an error which is evident per sefrom the record of the case and does not requiredetailed examination, scrutiny and elucidation eitherof the facts or the legal position. If an error is notself-evident and detection thereof requires longdebate and process of reasoning, it cannot be treatedas an error apparent on the face of the record for thepurpose of Order 47 Rule 1 CPC or Section 22(3)(f)of the Act. To put it differently an order or decisionor judgment cannot be corrected merely because it iserroneous in law or on the ground that a differentview could have been taken by the court/tribunal on a point of fact or law. In any case, while exercisingthe power of review, the court/tribunal concernedcannot sit in appeal over its judgment/decision. 35. The principles which can be culled out from theabovenoted judgments are: (i) The power of the Tribunal to review itsorder/decision under Section 22(3)(f) of the Act isakin/analogous to the power of a civil court underSection 114 read with Order 47 Rule 1 CPC. (ii) The Tribunal can review its decision on either ofthe grounds enumerated in Order 47 Rule 1 and nototherwise. a point of fact or law. In any case, while exercisingthe power of review, the court/tribunal concernedcannot sit in appeal over its judgment/decision. 35. The principles which can be culled out from theabovenoted judgments are: (i) The power of the Tribunal to review itsorder/decision under Section 22(3)(f) of the Act isakin/analogous to the power of a civil court underSection 114 read with Order 47 Rule 1 CPC. (ii) The Tribunal can review its decision on either ofthe grounds enumerated in Order 47 Rule 1 and nototherwise. (iii) The expression “any other sufficient reason”appearing in Order 47 Rule 1 has to be interpreted inthe light of other specified grounds. (iv) An error which is not self-evident and which canbe discovered by a long process of reasoning, cannotbe treated as an error apparent on the face of recordjustifying exercise of power under Section 22(3)(f). (v) An erroneous order/decision cannot be correctedin the guise of exercise of power of review. (vi) A decision/order cannot be reviewed underSection 22(3)(f) on the basis of subsequentdecision/judgment of a coordinate or larger Bench ofthe tribunal or of a superior court. (vii) While considering an application for review, thetribunal must confine its adjudication with referenceto material which was available at the time of initialdecision. The happening of some subsequent eventor development cannot be taken note of for declaringthe initial order/decision as vitiated by an errorapparent. (viii) Mere discovery of new or important matter orevidence is not sufficient ground for review. Theparty seeking review has also to show that suchmatter or evidence was not within its knowledge andeven after the exercise of due diligence, the same could not be produced before the court/tribunalearlier.” In the aforesaid case the Apex Court has held that amistake or an error apparent on the face of the record meansa mistake or an error which is prima-facie visible and doesnot require any detail examination. In the present case thepetitioner has not been able to point out any error apparenton the face of the record, on the contrary this Court hasdecided the case on merits. The Apex Court again dealing with the scope ofinterference and limitation of review in the case ofInderchand Jain (dead) Through LRs Vs. Motilal (dead)Through LRs, reported in (2009) 14 SCC 663 inparagraphs 7, 22, 24, 29, 31 and 33 has held as under :- “7. Section 114 of the Code of Civil Procedure (forshort “the Code”) provides for a substantive power ofreview by a civil court and consequently by theappellate courts. The words “subject as aforesaid”occurring in Section 114 of the Code mean subject tosuch conditions and limitations as may be prescribedas appearing in Section 113 thereof and for the saidpurpose, the procedural conditions contained in Order47 of the Code must be taken into consideration.Section 114 of the Code although does not prescribeany limitation on the power of the court but suchlimitations have been provided for in Order 47 of theCode; Rule 1 whereof reads as under: “17. The power of a civil court to review itsjudgment/decision is traceable in Section 114 CPC.The grounds on which review can be sought areenumerated in Order 47 Rule 1 CPC, which reads asunder: ‘1. Application for review of judgment.—(1) Anyperson considering himself aggrieved— (a) by a decree or order from which an appeal isallowed, but from which no appeal has beenpreferred, (b) by a decree or order from which no appeal isallowed, or (c) by a decision on a reference from a Court of Small Causes, “17. The power of a civil court to review itsjudgment/decision is traceable in Section 114 CPC.The grounds on which review can be sought areenumerated in Order 47 Rule 1 CPC, which reads asunder: ‘1. Application for review of judgment.—(1) Anyperson considering himself aggrieved— (a) by a decree or order from which an appeal isallowed, but from which no appeal has beenpreferred, (b) by a decree or order from which no appeal isallowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and importantmatter or evidence which, after the exercise of duediligence, was not within his knowledge or could notbe produced by him at the time when the decree waspassed or order made, or on account of some mistakeor error apparent on the face of the record, or for anyother sufficient reason, desires to obtain a review ofthe decree passed or order made against him, mayapply for a review of judgment of the court whichpassed the decree or made the order.’ 22. Whereas the appellant-defendant filed a reviewapplication confined to the question that he wasentitled to the restitution of the property and mesneprofit in respect whereof the learned Single Judge ofthe High Court did not pass any specific order, theapplication for review filed by the respondent was onthe merit of the judgment. The relevant grounds ofreview which have been placed before us relate to: (i) Unconditional withdrawal of some amount by oneof the creditors of the defendant as also the defendanthimself. (ii) The defendant's application before the executingcourt that he was ready and willing to get the saledeed executed on receipt of amount in cash and thesaid admission allegedly was not brought to the noticeof the court. (iii) While holding that there was no agreement toreduce the sale consideration, the High Court hadignored the fact that it was an admitted case of theparties, as stipulated in the contract, that thedefendants would get the premises vacated from thetenants within three months. (iv) The appellant had prayed for an alternative reliefviz. that he was ready to get the decree for specificperformance of contract by paying Rs 1,15,000. Thecourt did not consider the evidence of DWs 1 to 6 intheir proper perspective. (v) The court did not consider that the property couldnot be restored back to the appellant-defendant and assuch the court should have exercised its discretionaryjurisdiction. 24. An appeal is a continuation of the suit. Anydecision taken by the appellate court would relateback, unless a contrary intention is shown, to the dateof institution of the suit. There cannot be any doubtthat the appellate court while exercising its appellatejurisdiction would be entitled to take intoconsideration the subsequent events for the purpose of moulding the relief as envisaged under Order 7 Rule 7read with Order 41 Rule 33 of the Code of CivilProcedure. The same shall, however, not mean thatthe court would proceed to do so in a reviewapplication despite holding that the plaintiff was notentitled to grant of a decree for specific performanceof contract. 24. An appeal is a continuation of the suit. Anydecision taken by the appellate court would relateback, unless a contrary intention is shown, to the dateof institution of the suit. There cannot be any doubtthat the appellate court while exercising its appellatejurisdiction would be entitled to take intoconsideration the subsequent events for the purpose of moulding the relief as envisaged under Order 7 Rule 7read with Order 41 Rule 33 of the Code of CivilProcedure. The same shall, however, not mean thatthe court would proceed to do so in a reviewapplication despite holding that the plaintiff was notentitled to grant of a decree for specific performanceof contract. 29. Order 41 Rule 1 of the Code stipulates that filingof an appeal would not amount to automatic stay ofthe execution of the decree. The law acknowledgesthat during pendency of the appeal it is possible forthe decree-holder to get the decree executed. Theexecution of the decree during pendency of the appealwould, thus, be subject to the restitution of theproperty in the event the appeal is allowed and thedecree is set aside. The court only at the time ofpassing a judgment and decree reversing that of theappellate court should take into consideration thesubsequent events, but, by no stretch of imagination,can refuse to do so despite arriving at the findings thatthe plaintiff would not be entitled to grant of a decree.31. Contention of Mr Venugopal that the defendanthaving accepted novation of contract but only thequantum of the amount being different, the courtcould have asked the respondent-plaintiff to deposit afurther sum of Rs 24,000 cannot be accepted for morethan one reason. Apart from the fact that such acontention had never been raised before the appellatecourt, keeping in view the finding of fact arrived atthat there had in fact been no novation of contract,such a course of action was not open. In any view ofthe matter, the same would amount to reappreciationof evidence which was beyond the review jurisdictionof the High Court. 33. The High Court had rightly noticed the reviewjurisdiction of the court, which is as under: “The law on the subject—exercise of power ofreview, as propounded by the Apex Court and variousother High Courts may be summarised as hereunder:(i) Review proceedings are not by way of appeal andhave to be strictly confined to the scope and ambit ofOrder 47 Rule 1 CPC. (ii) Power of review may be exercised when somemistake or error apparent on the fact of record isfound. But error on the face of record must be such anerror which must strike one on mere looking at therecord and would not require any long-drawn processof reasoning on the points where there mayconceivably be two opinions. (iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.(iv) Power of review can also be exercised for anysufficient reason which is wide enough to include amisconception of fact or law by a court or even anadvocate. (v) An application for review may be necessitated byway of invoking the doctrine actus curiae neminemgravabit.” In our opinion, the principles of law enumerated by it,in the facts of this case, have wrongly been applied.” The Apex Court while dealing with the scope ofreview has held that re-appreciation of evidence andrehearing of case without there being any error apparent onthe face of the record is not permissible in light ofprovisions as contained U/s 114 and Order 47 Rule 1 ofCode of Civil Procedure, 1908. The Apex Court in the case of S. Bagirathi Ammal Vs. Palani Roman Catholic Mission, reported in (2009) 10 SCC 464 in paragraphs 12 and 26 has held as under :- (v) An application for review may be necessitated byway of invoking the doctrine actus curiae neminemgravabit.” In our opinion, the principles of law enumerated by it,in the facts of this case, have wrongly been applied.” The Apex Court while dealing with the scope ofreview has held that re-appreciation of evidence andrehearing of case without there being any error apparent onthe face of the record is not permissible in light ofprovisions as contained U/s 114 and Order 47 Rule 1 ofCode of Civil Procedure, 1908. The Apex Court in the case of S. Bagirathi Ammal Vs. Palani Roman Catholic Mission, reported in (2009) 10 SCC 464 in paragraphs 12 and 26 has held as under :- “12. An error contemplated under the Rule must be suchwhich is apparent on the face of the record and not anerror which has to be fished out and searched. In otherwords, it must be an error of inadvertence. It should besomething more than a mere error and it must be onewhich must be manifest on the face of the record. Whendoes an error cease to be mere error and becomes anerror apparent on the face of the record depends uponthe materials placed before the court. If the error is soapparent that without further investigation or enquiry,only one conclusion can be drawn in favour of theapplicant, in such circumstances, the review will lie.Under the guise of review, the parties are not entitled torehearing of the same issue but the issue can be decidedjust by a perusal of the records and if it is manifest canbe set right by reviewing the order. With thisbackground, let us analyse the impugned judgment ofthe High Court and find out whether it satisfies any ofthe tests formulated above. 26. As held earlier, if the judgment/order is vitiated byan apparent error or it is a palpable wrong and if theerror is self-evident, review is permissible and in thiscase the High Court has rightly applied the said principles as provided under Order 47 Rule 1 CPC. Inview of the same, we are unable to accept the argumentsof learned Senior Counsel appearing for the appellant,on the other hand, we are in entire agreement with theview expressed by the High Court.” Keeping in view the aforesaid judgment, this Court does not find any reason to review the order dated29.04.2019 passed in W.P. No.3813/2019. Certified copy as per rules. (S.C. SHARMA) J U D G E (VIRENDER SINGH) J U D G E Ravi