Shri Mansukhlal v. Income Tax Department

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE R. P. No. 771 / 2019 SHRI MANSUKHLAL VS. INCOME TAX DEPARTMENT --- 1 --- INDORE, Dated : 19/06/2019 Mr. PM Choudhary, learned senior counsel appearingwith Mr. Anand Prabhawalkar, Advocate for the applicant. Ms. Veena Mandlik, learned counsel for therespondent. The applicant before this Court has filed this presentReview Petition for reviewing the order dated 10/4/2019(Mansukhlal Pitalia Vs. The Principal Commissioner ofIncome Tax & another). The applicant was aggrieved by order dated 4/12/2018passed by the Principal Commissioner of Income Tax, Ujjainu/S. 220(2) of the Income Tax Act, 1961. The applicantcame up with a case that levy of interest was on the higherside and it was causing great hardship to him and, therefore,the application for waiver of interest be allowed. ThePrincipal Chief Commissioner has rejected the application. This Court after hearing the learned counsel for theparties at length and after taking into account all the factsand circumstances of the case has arrived at a conclusion thatit was not a case where the assessee was ready to deposit theincome tax. The assessment order was passed by theAssessing Officer pursuant to the search and seizureoperations and the Principal Commissioner has exercised hisjurisdiction judiciously keeping in view Sec. 220(2A) of theIncome Tax Act, 1961. This Court is of the considered opinion that the R. P. No. 771 / 2019 SHRI MANSUKHLAL VS. INCOME TAX DEPARTMENT --- 2 ---petitioner, in fact, now wants rehearing of the matter whichis not permissible. There is no error apparent on the face ofthe record warranting review. The order passed by thePrincipal Chief Commissioner Income Tax can never be saidto be a cryptic / non-speaking order, as stated in the groundsraised in the review petition. The legality and validity of theorder has been looked into by this Court. The Apex Court in the case of Haridas Das Vs. Usha RaniBank (Smt) and Ors., reported in (2006) 4 SCC 78 in paragraph 13and 20 has held as under :- 13. In order to appreciate the scope of a review, Section 114CPC has to be read, but this section does not even adumbratethe ambit of interference expected of the court since itmerely states that it “may make such order thereon as itthinks fit”. The parameters are prescribed in Order 47 CPCand for the 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 other sufficientreason”. The former part of the rule deals with a situationattributable to the applicant, and the latter to a jural actionwhich is manifestly incorrect or on which two conclusionsare not possible. Neither of them postulate a rehearing of thedispute because a party had not highlighted all the aspects ofthe case or could perhaps have argued them more forcefullyand/or cited binding precedents to the court and therebyenjoyed a favourable verdict. This is amply evident from theExplanation to Rule 1 of Order 47 which states that the factthat the decision on a question of law on which the judgmentof the court is based has been reversed or modified by thesubsequent decision of a superior court in any other case,shall not be a ground for the review of such judgment. Wherethe order in question is appealable the aggrieved party hasadequate and efficacious remedy and the court shouldexercise the power to review its order with the greatestcircumspection. This Court in Thungabhadra Industries Ltd.v. Govt. of A.P. held as follows: “There is a distinction which is real, though it might notalways be capable of exposition, between a mere erroneousdecision and a decision which could be characterised asvitiated by ‘error apparent’. A review is by no means anappeal in disguise whereby an erroneous decision is reheardand corrected, but lies only for patent error. … wherewithout any elaborate argument one could point to the error R. P. No. 771 / 2019 “There is a distinction which is real, though it might notalways be capable of exposition, between a mere erroneousdecision and a decision which could be characterised asvitiated by ‘error apparent’. A review is by no means anappeal in disguise whereby an erroneous decision is reheardand corrected, but lies only for patent error. … wherewithout any elaborate argument one could point to the error R. P. No. 771 / 2019 SHRI MANSUKHLAL VS. INCOME TAX DEPARTMENT and say here is a substantial point of law which stares one inthe face, and there could reasonably be no two opinionsentertained about it, a clear case of error apparent on the faceof the record would be made out.” 20. When the aforesaid principles are applied to thebackground facts of the present case, the position is clear thatthe High Court had clearly fallen in error in accepting theprayer for review. First, the crucial question which accordingto the High Court was necessary to be adjudicated was thequestion whether Title Suit No. 201 of 1985 (sic 1 of 1986)was barred by the provisions of Order 2 Rule 2 CPC. Thisquestion arose in Title Suit No. 1 of 1986 and was irrelevantso far as Title Suit No. 2 of 1987 is concerned. Additionally,the High Court erred in holding that no prayer for leaveunder Order 2 Rule 2 CPC was made in the plaint in TitleSuit No. 201 of 1985. The claim of oral agreement dated 19-8-1982 is mentioned in para 7 of the plaint, and at the end ofthe plaint it has been noted that the right to institute the suitfor specific performance was reserved. That being so, theHigh Court has erroneously held about infraction of Order 2Rule 2 CPC. This was not a case where Order 2 Rule 2 CPChas any application. In the aforesaid case, the Apex Court has held that rehearing ofa case can be done on account of some mistake or an error apparenton the face of the record or for any other sufficient reason. In thepresent case, there is no error apparent on the face of the record andthe petitioner infact under the guise of review is challenging the orderpassed by this Court, which is under review. Similarly the ApexCourt in the case of State of West Bengal and Ors. Vs. KamalSengupta and Anr., reported in (2008) 8 SCC 612 in paragraphs 21,22 and 35 has held as under :- “21. At this stage it is apposite to observe that where a reviewis sought on the ground of discovery of new matter orevidence, such matter or evidence must be relevant and mustbe of such a character that if the same had been produced, itmight have altered the judgment. In other words, merediscovery of new or important matter or evidence is notsufficient ground for review ex debito justitiae. Not only this,the party seeking review has also to show that such additionalmatter or evidence was not within its knowledge and evenafter the exercise of due diligence, the same could not beproduced before the court earlier. 22. The term “mistake or error apparent” by its very R. P. No. 771 / 2019 SHRI MANSUKHLAL VS. INCOME TAX DEPARTMENT connotation signifies an error which is evident per se from therecord of the case and does not require detailed examination,scrutiny and elucidation either of the facts or the legalposition. If an error is not self-evident and detection thereofrequires long debate and process of reasoning, it cannot betreated as an error apparent on the face of the record for thepurpose of Order 47 Rule 1 CPC or Section 22(3)(f) of theAct. To put it differently an order or decision or judgmentcannot be corrected merely because it is erroneous in law oron the ground that a different view could have been taken bythe court/tribunal on a point of fact or law. In any case, whileexercising the 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: 35. The principles which can be culled out from theabovenoted judgments are: (i) The power of the Tribunal to review its order/decisionunder Section 22(3)(f) of the Act is akin/analogous to thepower of a civil court under Section 114 read with Order 47Rule 1 CPC. (ii) The Tribunal can review its decision on either of thegrounds enumerated in Order 47 Rule 1 and not otherwise. (iii) The expression “any other sufficient reason” appearing inOrder 47 Rule 1 has to be interpreted in the light of otherspecified grounds. (iv) An error which is not self-evident and which can bediscovered by a long process of reasoning, cannot be treatedas an error apparent on the face of record justifying exerciseof power under Section 22(3)(f). (v) An erroneous order/decision cannot be corrected in theguise of exercise of power of review. (vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of acoordinate or larger Bench of the tribunal or of a superiorcourt. (vii) While considering an application for review, the tribunalmust confine its adjudication with reference to material whichwas available at the time of initial decision. The happening ofsome subsequent event or development cannot be taken noteof for declaring the initial order/decision as vitiated by anerror apparent. (viii) Mere discovery of new or important matter or evidenceis not sufficient ground for review. The party seeking reviewhas also to show that such matter or evidence was not withinits knowledge and even after the exercise of due diligence, the HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE SHRI MANSUKHLAL VS. INCOME TAX DEPARTMENT same could not be produced before the court/tribunal earlier.” In the aforesaid case the Apex Court has held that a mistake oran error apparent on the face of the record means a mistake or anerror which is prima-facie visible and does not require any detailexamination. In the present case the petitioner has not been able topoint out any error apparent on the face of the record, on the contrarythis Court has decided the case on merits. The Apex Court again dealing with the scope of interferenceand limitation of review in the case of Inderchand Jain (dead)Through LRs Vs. Motilal (dead) Through LRs, reported in (2009)14 SCC 663 in 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 a substantive power of review by acivil court and consequently by the appellate courts. Thewords “subject as aforesaid” occurring in Section 114 of theCode mean subject to such conditions and limitations as maybe prescribed as appearing in Section 113 thereof and for thesaid purpose, the procedural conditions contained in Order47 of the Code must be taken into consideration. Section 114of the Code although does not prescribe any limitation on thepower of the court but such limitations have been providedfor in Order 47 of the Code; Rule 1 whereof reads as under: “17. The power of a civil court to review itsjudgment/decision is traceable in Section 114 CPC. Thegrounds on which review can be sought are enumerated inOrder 47 Rule 1 CPC, which reads as under: ‘1. Application for review of judgment.—(1) Any personconsidering himself aggrieved— (a) by a decree or order from which an appeal is allowed, butfrom which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of SmallCauses, and who, from the discovery of new and importantmatter or evidence which, after the exercise of due diligence,was not within his knowledge or could not be produced byhim at the time when the decree was passed or order made,or on account of some mistake or error apparent on the face R. P. No. 771 / 2019 SHRI MANSUKHLAL VS. INCOME TAX DEPARTMENT ‘1. Application for review of judgment.—(1) Any personconsidering himself aggrieved— (a) by a decree or order from which an appeal is allowed, butfrom which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of SmallCauses, and who, from the discovery of new and importantmatter or evidence which, after the exercise of due diligence,was not within his knowledge or could not be produced byhim at the time when the decree was passed or order made,or on account of some mistake or error apparent on the face R. P. No. 771 / 2019 SHRI MANSUKHLAL VS. INCOME TAX DEPARTMENT of the record, or for any other sufficient reason, desires toobtain a review of the decree passed or order made againsthim, may apply 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 was entitled tothe restitution of the property and mesne profit in respectwhereof the learned Single Judge of the High Court did notpass any specific order, the application for review filed bythe respondent was on the merit of the judgment. Therelevant grounds of review which have been placed before usrelate to: (i) Unconditional withdrawal of some amount by one of thecreditors of the defendant as also the defendant himself. (ii) The defendant's application before the executing courtthat he was ready and willing to get the sale deed executedon receipt of amount in cash and the said admission allegedlywas not brought to the notice of the court. (iii) While holding that there was no agreement to reduce thesale consideration, the High Court had ignored the fact that itwas an admitted case of the parties, as stipulated in thecontract, that the defendants would get the premises vacatedfrom the tenants within three months. (iv) The appellant had prayed for an alternative relief viz.that he was ready to get the decree for specific performanceof contract by paying Rs 1,15,000. The court did not considerthe evidence of DWs 1 to 6 in their proper perspective. (v) The court did not consider that the property could not berestored back to the appellant-defendant and as such thecourt should have exercised its discretionary jurisdiction. 24. An appeal is a continuation of the suit. Any decisiontaken by the appellate court would relate back, unless acontrary intention is shown, to the date of institution of thesuit. There cannot be any doubt that the appellate court whileexercising its appellate jurisdiction would be entitled to takeinto consideration the subsequent events for the purpose ofmoulding the relief as envisaged under Order 7 Rule 7 readwith Order 41 Rule 33 of the Code of Civil Procedure. Thesame shall, however, not mean that the court would proceedto do so in a review application despite holding that theplaintiff was not entitled to grant of a decree for specificperformance of contract. 29. Order 41 Rule 1 of the Code stipulates that filing of anappeal would not amount to automatic stay of the executionof the decree. The law acknowledges that during pendency ofthe appeal it is possible for the decree-holder to get thedecree executed. The execution of the decree duringpendency of the appeal would, thus, be subject to therestitution of the property in the event the appeal is allowedand the decree is set aside. The court only at the time ofpassing a judgment and decree reversing that of the appellatecourt should take into consideration the subsequent events,but, by no stretch of imagination, can refuse to do so despite R. P. No. 771 / 2019 SHRI MANSUKHLAL VS. INCOME TAX DEPARTMENT --- 7 --- arriving at the findings that the plaintiff would not be entitledto grant of a decree. R. P. No. 771 / 2019 SHRI MANSUKHLAL VS. INCOME TAX DEPARTMENT --- 7 --- arriving at the findings that the plaintiff would not be entitledto grant of a decree. 31. Contention of Mr Venugopal that the defendant havingaccepted novation of contract but only the quantum of theamount being different, the court could have asked therespondent-plaintiff to deposit a further sum of Rs 24,000cannot be accepted for more than one reason. Apart from thefact that such a contention had never been raised before theappellate court, keeping in view the finding of fact arrived atthat there had in fact been no novation of contract, such acourse of action was not open. In any view of the matter, thesame would amount to reappreciation of evidence which wasbeyond the review jurisdiction of 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 of review, aspropounded by the Apex Court and various other HighCourts may be summarised as hereunder: (i) Review proceedings are not by way of appeal and have tobe strictly confined to the scope and ambit of Order 47 Rule1 CPC. (ii) Power of review may be exercised when some mistake orerror apparent on the fact of record is found. But error on theface of record must be such an error which must strike oneon mere looking at the record and would not require anylong-drawn process of reasoning on the points where theremay conceivably be two opinions. (iii) Power of review may not be exercised on the ground thatthe decision was erroneous on merits. (iv) Power of review can also be exercised for any sufficientreason which is wide enough to include a misconception offact or law by a court or even an advocate. (v) An application for review may be necessitated by way ofinvoking the doctrine actus curiae neminem gravabit.” In our opinion, the principles of law enumerated by it, in thefacts of this case, have wrongly been applied.” The Apex Court while dealing with the scope of review hasheld that re-appreciation of evidence and rehearing of case withoutthere being any error apparent on the face of the record is notpermissible in light 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. Bagirathi Ammal Vs. PalaniRoman Catholic Mission, reported in (2009) 10 SCC 464 in KR HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE R. P. No. 771 / 2019 SHRI MANSUKHLAL VS. INCOME TAX DEPARTMENT 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 an errorwhich has to be fished out and searched. In other words, itmust be an error of inadvertence. It should be somethingmore than a mere error and it must be one which must bemanifest on the face of the record. When does an error ceaseto be mere error and becomes an error apparent on the face ofthe record depends upon the materials placed before thecourt. If the error is so apparent that without furtherinvestigation or enquiry, only one conclusion can be drawnin favour of the applicant, in such circumstances, the reviewwill lie. Under the guise of review, the parties are not entitledto rehearing of the same issue but the issue can be decidedjust by a perusal of the records and if it is manifest can be setright by reviewing the order. With this background, let usanalyse the impugned judgment of the High Court and findout whether it satisfies any of the tests formulated above. 26. As held earlier, if the judgment/order is vitiated by anapparent error or it is a palpable wrong and if the error isself-evident, review is permissible and in this case the HighCourt has rightly applied the said principles as providedunder Order 47 Rule 1 CPC. In view of the same, we areunable to accept the arguments of learned Senior Counselappearing for the appellant, on the other hand, we are inentire agreement with the view expressed by the HighCourt.” In light of the aforesaid judgments, this court does not find anyreason to review the order dated 10/4/2019 passed in Writ PetitionNo. 2464/2019. There is no error apparent on the face of the record. No case forinterference is made out in the matter. Accordingly, the reviewpetition is dismissed. (S. C. SHARMA)J U D G E (VIRENDER SINGH)J U D G E Digitally signed by Kamal Rathor Date: 2019.06.19 15:34:09 +05'30'