Rp/1073/2018 Of Ssp Enterprises Private Ltd. Through Anup Singh Yadav v. Assistant Commissioner Of Income Tax – 1 (2) Indore, Dated 08.02.2019

HIGH COURT OF MADHYA PRADESH: BENCH AT INDORER.P. No.1073/2018SSP Enterprises Private Ltd. v/s Assistant Commissioner ofIncome Tax – 1 (2)Indore, dated 08.02.2019 Shri P.M. Choudhary, learned senior counselalong with Shri Anand Prabhawalkar, learned counselfor the petitioner. Ms. Veena Mandlik, learned counsel for therespondent. The petitioner before this Court has filed thispresent review petition for reviewing the order dated07.05.2018 passed Division Bench of this Court inI.T.A. No.223/2017. The Division Bench of this Court by a verydetailed and exhaustive order has decided the appealon merits and has arrived at a conclusion that nosubstantial question of law arises in the present appeal. In the considered opinion if this Court, there isno error apparent on the face of record warrantingreview and in case, it is an erroneous order, the onlyremedy available to the present petitioner to approachthe Apex Court. The Apex Court in the case of Haridas Das Vs.Usha Rani Bank (Smt) and Ors.,reported in(2006) 4SCC 78 in paragraph 13 and 20 has held as under :- “13. In order to appreciate the scope of areview, Section 114 CPC has to be read, butthis section does not even adumbrate theambit of interference expected of the courtsince it merely states that it “may make suchorder thereon as it thinks fit”. The parametersare prescribed in Order 47 CPC and for thepurposes of this lis, permit the defendant to press for a rehearing “on account of somemistake or error apparent on the face of therecords or for any other sufficient reason”.The former part of the rule deals with asituation attributable to the applicant, and thelatter to a jural action which is manifestlyincorrect or on which two conclusions arenot possible. Neither of them postulate arehearing of the dispute because a party hadnot highlighted all the aspects of the case orcould perhaps have argued them moreforcefully and/or cited binding precedents tothe court and thereby enjoyed a favourableverdict. This is amply evident from theExplanation to Rule 1 of Order 47 whichstates that the fact that the decision on aquestion of law on which the judgment of thecourt is based has been reversed or modifiedby the subsequent decision of a superiorcourt in any other case, shall not be a groundfor the review of such judgment. Where theorder in question is appealable the aggrievedparty has adequate and efficacious remedyand the court should exercise the power toreview its order with the greatestcircumspection. This Court in ThungabhadraIndustries Ltd. v. Govt. of A.P.[1] held asfollows: (SCR p. 186) “[T]here is a distinction which is real, thoughit might not always be capable of exposition,between a mere erroneous decision and adecision which could be characterised asvitiated by ‘error apparent’. A review is byno means an appeal in disguise whereby anerroneous decision is reheard and corrected,but lies only for patent error. … wherewithout any elaborate argument one couldpoint to the error and say here is a substantialpoint of law which stares one in the face, andthere could reasonably be no two opinionsentertained about it, a clear case of errorapparent on the face of the record would bemade out.” 20. When the aforesaid principles are appliedto the background facts of the present case,the position is clear that the High Court hadclearly fallen in error in accepting the prayerfor review. First, the crucial question which 20. When the aforesaid principles are appliedto the background facts of the present case,the position is clear that the High Court hadclearly fallen in error in accepting the prayerfor review. First, the crucial question which according to the High Court was necessary tobe adjudicated was the question whetherTitle Suit No. 201 of 1985 (sic 1 of 1986)was barred by the provisions of Order 2 Rule2 CPC. This question arose in Title Suit No.1 of 1986 and was irrelevant so far as TitleSuit No. 2 of 1987 is concerned.Additionally, the High Court erred in holdingthat no prayer for leave under Order 2 Rule 2CPC was made in the plaint in Title Suit No.201 of 1985. The claim of oral agreementdated 19-8-1982 is mentioned in para 7 ofthe plaint, and at the end of the plaint it hasbeen noted that the right to institute the suitfor specific performance was reserved. Thatbeing so, the High Court has erroneouslyheld about infraction of Order 2 Rule 2 CPC.This was not a case where Order 2 Rule 2CPC has any application.” In the aforesaid case, the Apex Court has heldthat rehearing of a case can be done on account ofsome mistake or an error apparent on the face of therecord or for any other sufficient reason. In the presentcase, there is no error apparent on the face of therecord and the petitioner in fact under the guise ofreview is challenging the order passed by this Court,which is under review. Similarly the Apex Court in thecase 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 observethat where a review is sought on the groundof discovery of new matter or evidence,such matter or evidence must be relevantand must be of such a character that if thesame had been produced, it might havealtered the judgment. In other words, merediscovery of new or important matter orevidence is not sufficient ground for reviewex debito justitiae. Not only this, the party seeking review has also to show that suchadditional matter or evidence was not withinits knowledge and even after the exercise ofdue diligence, the same could not beproduced before the court earlier. 22. The term “mistake or error apparent” byits very connotation signifies an error whichis evident per se from the record of the caseand does not require detailed examination,scrutiny and elucidation either of the facts orthe legal position. If an error is not self-evident and detection thereof requires longdebate and process of reasoning, it cannot betreated as an error apparent on the face ofthe record for the purpose of Order 47 Rule1 CPC or Section 22(3)(f) of the Act. To putit differently an order or decision orjudgment cannot be corrected merelybecause it is erroneous in law or on theground that a different view could have beentaken by the court/tribunal on a point of factor law. In any case, while exercising thepower of review, the court/tribunalconcerned cannot sit in appeal over itsjudgment/decision. 35. The principles which can be culled outfrom the abovenoted judgments are: (i) The power of the Tribunal to review itsorder/decision under Section 22(3)(f) of theAct is akin/analogous to the power of a civilcourt under Section 114 read with Order 47Rule 1 CPC. (ii) The Tribunal can review its decision oneither of the grounds enumerated in Order 47 Rule 1 and not otherwise. (iii) The expression “any other sufficientreason” appearing in Order 47 Rule 1 has tobe interpreted in the light of other specifiedgrounds. (iv) An error which is not self-evident andwhich can be discovered by a long processof reasoning, cannot be treated as an errorapparent on the face of record justifyingexercise of power under Section 22(3)(f). (v) An erroneous order/decision cannot becorrected in the guise of exercise of powerof review. (vi) A decision/order cannot be reviewed (i) The power of the Tribunal to review itsorder/decision under Section 22(3)(f) of theAct is akin/analogous to the power of a civilcourt under Section 114 read with Order 47Rule 1 CPC. (ii) The Tribunal can review its decision oneither of the grounds enumerated in Order 47 Rule 1 and not otherwise. (iii) The expression “any other sufficientreason” appearing in Order 47 Rule 1 has tobe interpreted in the light of other specifiedgrounds. (iv) An error which is not self-evident andwhich can be discovered by a long processof reasoning, cannot be treated as an errorapparent on the face of record justifyingexercise of power under Section 22(3)(f). (v) An erroneous order/decision cannot becorrected in the guise of exercise of powerof review. (vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis ofsubsequent decision/judgment of acoordinate or larger Bench of the tribunal orof a superior court. (vii) While considering an application forreview, the tribunal must confine itsadjudication with reference to materialwhich was available at the time of initialdecision. The happening of some subsequentevent or development cannot be taken noteof for declaring the initial order/decision asvitiated by an error apparent. (viii) Mere discovery of new or importantmatter or evidence is not sufficient groundfor review. The party seeking review hasalso to show that such matter or evidencewas not within its knowledge and even afterthe exercise of due diligence, the same couldnot be produced before the court/tribunalearlier.” In the aforesaid case the Apex Court has heldthat a mistake or an error apparent on the face of therecord means a mistake or an error which is prima-facie visible and does not require any detailexamination. In the present case the petitioner has notbeen able to point out any error apparent on the face ofthe record, on the contrary this Court has decided thecase 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 663in paragraphs 7, 22, 24, 29, 31 and 33 has held asunder :- “7. Section 114 of the Code of Civil Procedure(for short “the Code”) provides for asubstantive power of review by a civil courtand consequently by the appellate courts. The words “subject as aforesaid” occurring inSection 114 of the Code mean subject to suchconditions and limitations as may be prescribedas appearing in Section 113 thereof and for thesaid purpose, the procedural conditionscontained in Order 47 of the Code must betaken into consideration. Section 114 of theCode although does not prescribe anylimitation on the power of the court but suchlimitations have been provided for in Order 47of the Code; Rule 1 whereof reads as under: “17. The power of a civil court to review itsjudgment/decision is traceable in Section 114CPC. The grounds on which review can besought are enumerated in Order 47 Rule 1CPC, which reads as under: ‘1. Application for review of judgment.—(1)Any person considering himself aggrieved—(a) by a decree or order from which an appealis allowed, but from which no appeal has beenpreferred, (b) by a decree or order from which no appealis allowed, or (c) by a decision on a reference from a Court ofSmall Causes,Small Causes, and who, from the discovery of new andimportant matter or evidence which, after theexercise of due diligence, was not within hisknowledge or could not be produced by him atthe time when the decree was passed or ordermade, or on account of some mistake or errorapparent on the face of the record, or for anyother sufficient reason, desires to obtain areview of the decree passed or order madeagainst him, may apply for a review ofjudgment of the court which passed the decreeor made the order.’ (b) by a decree or order from which no appealis allowed, or (c) by a decision on a reference from a Court ofSmall Causes,Small Causes, and who, from the discovery of new andimportant matter or evidence which, after theexercise of due diligence, was not within hisknowledge or could not be produced by him atthe time when the decree was passed or ordermade, or on account of some mistake or errorapparent on the face of the record, or for anyother sufficient reason, desires to obtain areview of the decree passed or order madeagainst him, may apply for a review ofjudgment of the court which passed the decreeor made the order.’ 22. Whereas the appellant-defendant filed areview application confined to the question thathe was entitled to the restitution of the propertyand mesne profit in respect whereof the learnedSingle Judge of the High Court did not passany specific order, the application for reviewfiled by the respondent was on the merit of thejudgment. The relevant grounds of reviewwhich have been placed before us relate to: (i) Unconditional withdrawal of some amountby one of the creditors of the defendant as alsothe defendant himself. (ii) The defendant's application before the executing court that he was ready and willingto get the sale deed executed on receipt ofamount in cash and the said admissionallegedly was not brought to the notice of thecourt. (iii) While holding that there was no agreementto reduce the sale consideration, the High Courthad ignored the fact that it was an admittedcase of the parties, as stipulated in the contract,that the defendants would get the premisesvacated from the tenants within three months. (iv) The appellant had prayed for an alternativerelief viz. that he was ready to get the decreefor specific performance of contract by payingRs 1,15,000. The court did not consider theevidence of DWs 1 to 6 in their properperspective. (v) The court did not consider that the propertycould not be restored back to the appellant-defendant and as such the court should haveexercised its discretionary jurisdiction. 24. An appeal is a continuation of the suit. Anydecision taken by the appellate court wouldrelate back, unless a contrary intention isshown, to the date of institution of the suit.There cannot be any doubt that the appellatecourt while exercising its appellate jurisdictionwould be entitled to take into consideration thesubsequent events for the purpose of mouldingthe relief as envisaged under Order 7 Rule 7read with Order 41 Rule 33 of the Code ofCivil Procedure. The same shall, however, notmean that the court would proceed to do so in areview application despite holding that theplaintiff was not entitled to grant of a decreefor specific performance of contract. 29. Order 41 Rule 1 of the Code stipulates thatfiling of an appeal would not amount toautomatic stay of the execution of the decree.The law acknowledges that during pendency ofthe appeal it is possible for the decree-holder toget the decree executed. The execution of thedecree during pendency of the appeal would,thus, be subject to the restitution of theproperty in the event the appeal is allowed andthe decree is set aside. The court only at thetime of passing a judgment and decreereversing that of the appellate court should takeinto consideration the subsequent events, but,by no stretch of imagination, can refuse to do so despite arriving at the findings that theplaintiff would not be entitled to grant of adecree. 29. Order 41 Rule 1 of the Code stipulates thatfiling of an appeal would not amount toautomatic stay of the execution of the decree.The law acknowledges that during pendency ofthe appeal it is possible for the decree-holder toget the decree executed. The execution of thedecree during pendency of the appeal would,thus, be subject to the restitution of theproperty in the event the appeal is allowed andthe decree is set aside. The court only at thetime of passing a judgment and decreereversing that of the appellate court should takeinto consideration the subsequent events, but,by no stretch of imagination, can refuse to do so despite arriving at the findings that theplaintiff would not be entitled to grant of adecree. 31. Contention of Mr Venugopal that thedefendant having accepted novation of contractbut only the quantum of the amount beingdifferent, the court could have asked therespondent-plaintiff to deposit a further sum ofRs 24,000 cannot be accepted for more thanone reason. Apart from the fact that such acontention had never been raised before theappellate court, keeping in view the finding offact arrived at that there had in fact been nonovation of contract, such a course of actionwas not open. In any view of the matter, thesame would amount to reappreciation ofevidence which was beyond the reviewjurisdiction of the High Court. 33. The High Court had rightly noticed thereview jurisdiction of the court, which is asunder: “The law on the subject—exercise of power ofreview, as propounded by the Apex Court andvarious other High Courts may be summarisedas hereunder: (i) Review proceedings are not by way ofappeal and have to be strictly confined to thescope and ambit of Order 47 Rule 1 CPC. (ii) Power of review may be exercised whensome mistake or error apparent on the fact ofrecord is found. But error on the face of recordmust be such an error which must strike one onmere looking at the record and would notrequire any long-drawn process of reasoning onthe points where there may conceivably be twoopinions. (iii) Power of review may not be exercised onthe ground that the decision was erroneous onmerits. (iv) Power of review can also be exercised forany sufficient reason which is wide enough toinclude a misconception of fact or law by acourt or even an advocate. (v) An application for review may benecessitated by way of invoking the doctrineactus curiae neminem gravabit.” In our opinion, the principles of lawenumerated by it, in the facts of this case, havewrongly 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 errorapparent on the face of the record is not permissible inlight of provisions as contained U/s 114 and Order 47Rule 1 of Code of Civil Procedure, 1908. The Apex Court in the case of S. BagirathiAmmal Vs. Palani Roman Catholic Mission, reportedin (2009) 10 SCC 464 in paragraphs 12 and 26 hasheld as under :- “12. An error contemplated under the Rule mustbe such which is apparent on the face of therecord and not an error which has to be fished outand searched. In other words, it must be an errorof inadvertence. It should be something morethan a mere error and it must be one which mustbe manifest on the face of the record. When doesan error cease to be mere error and becomes anerror apparent on the face of the record depends The Apex Court in the case of S. BagirathiAmmal Vs. Palani Roman Catholic Mission, reportedin (2009) 10 SCC 464 in paragraphs 12 and 26 hasheld as under :- “12. An error contemplated under the Rule mustbe such which is apparent on the face of therecord and not an error which has to be fished outand searched. In other words, it must be an errorof inadvertence. It should be something morethan a mere error and it must be one which mustbe manifest on the face of the record. When doesan error cease to be mere error and becomes anerror apparent on the face of the record depends upon the materials placed before the court. If theerror is so apparent that without furtherinvestigation or enquiry, only one conclusion canbe drawn in favour of the applicant, in suchcircumstances, the review will lie. Under theguise of review, the parties are not entitled torehearing of the same issue but the issue can bedecided just by a perusal of the records and if it ismanifest can be set right by reviewing the order.With this background, let us analyse theimpugned judgment of the High Court and findout whether it satisfies any of the tests formulatedabove. 26. As held earlier, if the judgment/order isvitiated by an apparent error or it is a palpablewrong and if the error is self-evident, review ispermissible and in this case the High Court hasrightly applied the said principles as providedunder Order 47 Rule 1 CPC. In view of the same,we are unable to accept the arguments of learnedSenior Counsel appearing for the appellant, onthe other hand, we are in entire agreement withthe view expressed by the High Court.” Keeping in view the aforesaid judgment, thisCourt does not find any reason to review the orderdated 07.05.2018 passed in I.T.A. No.223/2017. Certified copy as per rules. (S.C. Sharma) Judge (S.K. Awasthi)Judge RaviDigitally signed by Ravi Prakash Date: 2019.02.11 11:30:56 +05'30'