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Commissioner of Sales Tax Vs. Ghanshyam Hotel - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberReview Application No. 7 of 1980 in S.T.R. No. 605 of 1980
Judge
Reported in[1983]52STC47(All)
AppellantCommissioner of Sales Tax
RespondentGhanshyam Hotel
Appellant AdvocateStanding Counsel
Respondent AdvocateBharatji Agarwal, Adv.
DispositionApplication rejected
Cases ReferredJaipur Mineral Development Syndicate v. Commissioner of Income
Excerpt:
- interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - it is well-settled that the power to review an order is not an inherent power......in p. iv. thakershi v. pradyuman : air1970sc1273 , it was held:it is well-settled that the power to review an order is not an inherent power. it must be conferred by law either specifically or by necessary implication.3. a half-hearted attempt was made by the learned standing counsel implying such power in section 22 of the act. the submission, however, proceeded on a misconception as the setting of the section hardly leaves any doubt that the revising authority mentioned in it meant the revising authority exercising power under section 10 of the act. further, jurisdiction exercised by this court although described as revisional since 1978 appears to be same, namely, advisory, as it was before. this is clear from a comparison of sub-sections (6) and (8) before and after.....
Judgment:

R.M. Sahai, J.

1. To this application filed under Section 151, Civil Procedure Code, by the Commissioner of Sales Tax, seeking review of the order dated 24th December, 1979, passed by this Court under Section 11 of the U. P. Sales Tax Act, a preliminary objection has been raised to its maintainability both on lack of statutory provision and absence of power to correct error of law in exercise of inherent jurisdiction.

2. That a court or an authority exercising judicial or quasi-judicial powers cannot review its order unless specifically empowered by statute is settled beyond controversy. In P. IV. Thakershi v. Pradyuman : AIR1970SC1273 , it was held:

It is well-settled that the power to review an order is not an inherent power. It must be conferred by law either specifically or by necessary implication.

3. A half-hearted attempt was made by the learned standing counsel implying such power in Section 22 of the Act. The submission, however, proceeded on a misconception as the setting of the section hardly leaves any doubt that the revising authority mentioned in it meant the revising authority exercising power under Section 10 of the Act. Further, jurisdiction exercised by this Court although described as revisional since 1978 appears to be same, namely, advisory, as it was before. This is clear from a comparison of Sub-sections (6) and (8) before and after amendment. They read as under :

(6) Where the High Court has before the said date, required the revising authority or an additional revising authority to state the case and refer it to the High Court under Sub-section (4), as it stood immediately before the said date, such authority shall, as soon as may be, make reference accordingly. Every reference so made, and every reference made by such authority before the said date in compliance with the requirement of the High Court under Sub-section (4), as it stood before the said date shall be deemed to be an application for revision under this section and disposed of accordingly.(8) The High Court shall, after hearing the parties to the revision, decide the questions of law involved therein, and where as a result of such decision, the amount of tax, fee or penalty is required to be determined afresh, the High Court may send a copy of the decision to the Tribunal for fresh determination of the amount, and the Tribunal shall thereupon pass such orders as are necessary to dispose of the case in conformity with the said decision.

4. But for the use of the words 'raised thereby' and 'involved therein' substantially there is no difference. In either case this Court only decides the question of law leaving final orders disposing of the case to be passed in conformity with the order of this Court by the revising authority or the Tribunal. The use of the word 'revision' instead of 'reference' did not bring about any change in the nature of jurisdiction exercised by this Court. What is determinative of jurisdiction is the nature of power exercised and not its description as appeal, revision or reference. Similar view has been taken by my brother V. K. Mehrotra, J., in Indo International Industries v. Commissioner, Sales Tax (S. T. R. No. 337 of 1981 decided on 29th January, 1982) [1982] 50 STC 249.

5. A court or authority exercising advisory jurisdiction is not empowered to review its order. In Emperor v. Kajori Mai Kalyan Das : AIR1930All211 , a Division Bench of this Court while considering the power of the court to review its order passed under Section 65 of the Indian Income-tax Act, 1922, which was analogous to Section 256 of the present Act, held that this Court was not empowered to review its order passed in the course of advisory jurisdiction. Similar view was taken by the then Nagpur High Court in Seth Mathura Das v. Commissioner of Income-tax . It was held that the court deciding the reference did not act as a civil court ; therefore, the provisions of the Civil Procedure Code were not attracted to it. In Jose T. Mooken v. Commissioner of Income-tax : [1979]117ITR921(Ker) , although the Kerala High Court did not agree with the decision of this Court in Roop Narain Ramchandra (P.) Ltd. v. Commissioner of Income-tax : [1972]84ITR181(All) , wherein it was held that the provisions of Section 151, Civil Procedure Code did not apply, yet held that in the absence of any specific conferment of power the court could not review its order passed by it in advisory jurisdiction. Reliance was placed by the learned standing counsel on Jaipur Mineral Development Syndicate v. Commissioner of Income-tax, New Delhi : [1977]106ITR653(SC) , where it was held that the High Court after declining to answer a reference does not become functus officio and can entertain the application for rehearing. It was urged that this decision should be deemed to have overruled all the earlier decisions given by the various High Courts. The learned counsel maintained that jurisdiction to pass appropriate order always remained in the court and it is open to it to exercise its inherent power in the interest of justice. Reliance was also placed on Adarsh Bhandar v. Sales Tax Officer [1959] 10 STC 364 (FB) and Shivdeo Singh v. State of Punjab AIR 1963 SC 1909. The decision in Jaipur Mineral Development Syndicate v. Commissioner of Income-tax : [1977]106ITR653(SC) was in an entirely different context. It does not directly or indirectly overrule the decisions given by the various High Courts that the court or authority exercising advisory jurisdiction is not empowered to review. In cases where reference has not been decided on merits for one reason or the other it has only saved the power and empowered the court to set it aside and hear and decide the reference on merits. The anxiety of the court was to preserve the power of the court for the ends of justice or to prevent the abuse of process of the court as it is conducive to sense of justice that disputes be decided on merit. Rectification of a clerical or typographical error is not the same thing as review of an order due to change in interpretation of law. A court may in exercise of inherent power correct a mistake committed by itself; but not an error of law resulting due to mistake of a party. It was in this limited sense that the Supreme Court preserved the power. But a review on the ground of a subsequent decision or clarification cannot amount to be a mistake on the part of the court. It cannot be brought in the ambit of abuse of process of court or in the interest of justice.

6. The learned standing counsel relied on a number of decisions but they were under Article 226 of the Constitution of India. In Commissioner of Income-tax v. Dewan Bahadur Ramgopal Mills Ltd. : [1961]41ITR280(SC) it has been held that the nature of an advisory jurisdiction exercised by this Court is not the same as extraordinary jurisdiction under Article 226 of the Constitution of India (sic). There is yet another reason why the power to review should not be exercised or invoked under Section 151 of the Code of Civil Procedure. If the legislative intent is clear and no power of review is conferred by the statute then it should not be invoked in exercise of inherent power. The legislative history of various Acts introducing amendments in the Act indicate that wherever the legislature intended to confer the power of review on this Court it specifically provided so in the amending Act itself, for instance, Sub-section (2) of Section 33 of U. P. Act 38 of 1975 and Sub-section (2) of Section 26 of Act 2 of 1980. These provisions negative the arguments of the learned standing counsel that even if the Act does not contain any specific power of review it can be exercised under Section 151 of the Code of Civil Procedure.

7. In the result, the application filed by the Commissioner of Sales Tax is rejected as not maintainable with costs.


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