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Jose T. Mooken Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKerala High Court
Decided On
Case NumberR.P. No. 169 of 1976 in ITR No. 84 of 1974
Judge
Reported in[1979]117ITR921(Ker)
ActsIncome Tax Act, 1922 - Sections 66; Income Tax Act, 1961 - Sections 256 and 260; Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 47, Rule 1
AppellantJose T. Mooken
RespondentCommissioner of Income-tax
Appellant Advocate T.L. Viswanatha Iyer,; E.R. Venkateswaran and; P.S. Nara
Respondent Advocate P.A. Francis and; P.K.R. Menon, Advs.
Cases ReferredVaranasi v. Gauri Shanker Misra
Excerpt:
.....invoking powers of civil court under order 47 rule 1 - held, high court cannot exercise that power under jurisdiction conferred on it. - - act, 1961, the assessee or the commissioner may require the tribunal, by an application in the prescribed form, to refer to the high court any question of law arising out of such order of the tribunal under section 254. if the tribunal is satisfied that a question of law arises, it may draw up a statement of the case and refer it to the high court. if the tribunal refuses to state the case on the ground that no question of law arises, the assessee or the commissioner, as the case may be, within the time stipulated in the provision may apply to the high court, and the high court may, if it is not satisfied with the correctness of the..........had been expressed by the privy council in adaikappa chettiar v. chandrasekhara thevar . that decision stated that where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal would lie if authorised by such rules notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal. the learned judge had also referred to the decision in secretary of state for india v. chellikani rama, rao ilr [1916] mad 617 ; air 1916 pc 21, where it was observed thus: 'it was contended on behalf of the appellant that all further proceedings in courts in india or by way of appeal were incompetent, these being.....
Judgment:

Chandrasekhara Menon, J.

1. In this application the petitioner prays for review of the judgment of this court in I.T.R. No. 84 of 1974. That reference application had been disposed of along with O.P, No. 5119 of 1974 : [1979]117ITR894(Ker) . We had answered the question referred to us in the I.T.R. in the affirmative, that is, in favour of the department and against the assessee--reported as Jose T.Mooken v. CIT : [1979]117ITR894(Ker) . We had pointed out therein that the Tribunal was right in holding that the proceedings taken against the legal representatives of the deceased, M.O. Thomakutty, were valid relying on the decision in Westminster Bank Ltd. v. Riches [1947] 28 TC 159 ; 15 ITR (Supp.) 86. In the application for review various contentions have been raised. Before adverting to these contentions we would have to consider whether an application which the petitioner has filed under Order 47, Rule 1 and Section 151, C.P.C., read with Section 260 of the I.T. Act, 1961, would lie.

2. The learned counsel for the revenue opposing the application would urge that no such applicatio'n would lie. He points out that under Section 256(1) of the I.T. Act, 1961, the assessee or the Commissioner may require the Tribunal, by an application in the prescribed form, to refer to the High Court any question of law arising out of such order of the Tribunal under Section 254. If the Tribunal is satisfied that a question of law arises, it may draw up a statement of the case and refer it to the High Court. If the Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the Commissioner, as the case may be, within the time stipulated in the provision may apply to the High Court, and the High Court may, if it is not satisfied with the correctness of the decision of the Tribunal, require the Tribunal to state the case and to refer it and on receipt of such requisition, the Tribunal shall state the case and refer it accordingly. After the High Court takes a decision on the question, a copy of the judgment in the matter will have to be sent under the seal of the court and signature of the Registrar to the Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such judgment. What the learned counsel for the revenue contends is that the relevant provision is indicative of the fact that the High Court is not exercising the power in the matter as a civil court as such and no question 'of a review of the decision rendered by the High Court would arise in the face of the fact that there is no specific statutory provision empowering the court to review its order.

3. In this connection a reference was made to the decision of the Privy Council in CIT v. Tehri-Garhwal State [1934] 2 ITR 1. In that case Tehri-Garhwal State had been made liable to taxation by the I.T. authorities forthe revenue year 1926-27, upon the profits of timber business. Income-tax was levied from the State under Section 3 of the Indian I.T. Act, 1922. From the first the State had contested its liability to taxation. It appealed from the original assessing authority to the Commissioner and from the Commissioner, upon a reference made by him under Section 66(2) of the said Act, to the High Court of Allahabad. The High Court held on the questions referred to it that none of the grounds taken by the State were tenable and the questions were answered in favour of the revenue. By the time this judgment was delivered it had apparently been ascertained that the State had in fact no taxable income in the year 1926-27. A part payment of Rs. 25,000 had been made by the State before the reference, which left a balance of Rs. 18,294-14-0 due upon the demand of the I.T. authorities. The State claimed the return of Rs. 25,000 on the ground that it had no taxable income in the year 1926-27, while the Commissioner with equal confidence claimed payment of Rs. 18,294-14-0. A second reference was thereupon made to the High Court by the Commissioner on his own motion asking for the determination of the following questions:

'(1) Does the judgment delivered by the High Court in Miscellaneous Case No. 671 of 1929 on November 21, 1929, operate of its own force to require the income-tax department to refund the sum of Rs. 25,000 paid by the Tehri Darbar, and to refrain from collecting the balance of Rs. 18,294-14-0?

(2) if the answer to question (1) is in the negative :

(a) Is the Tehri Darbar liable to pay the balance of Rs. 18,294-14-0

(b) Is the Tehri Darbar entitled to a refund of the amount already paid, i.e., Rs. 25,000?'

4. The High Court (the same judges who heard the previous case heard the second reference also) answered the first question in the affirmative and held that the State was not liable to pay the balance of Rs. 18,294-14-0 and that it was entitled to a refund of Rs. 25,000 already paid. The Commissioner appealed to the Privy Council. The Privy Council accepting the contention of the Commissioner said that though they might be prepared to endorse the view taken by the Allahabad High Court as to the true meaning of Section 3 of the Act of 1922, the former judgment of November 21, 1929, rendered by the High Court had not been appealed against and whether right or wrong must govern the relations of the parties in the particular case. The Privy Council further observed (p. 8):

'It is to be noticed that under Section 66(5) of the Act of 1922, the judgment of the High Court is to contain the grounds upon which the decision is founded : that a copy of the judgment is to be sent to the Commissioner, and that the case is to be disposed of by the income-tax authorities 'comformably to such judgment'. Under this provision their Lordshipsthink that the judgment as a whole is binding between the parties in the particular case. If the judgment expounded a wrong construction of the Act, as the appellant now contends, an appeal against it was open, and there is no other procedure by which it could be corrected.'

5. Another decision that was relied on by the learned counsel for the revenue is of the Nagpur High Court in Seth Mathuradas v. CIT , There a Division Bench of the Nagpur High Court consisting of Chief Justice, Stone and Justice, Vivian Bose (as he then was) had held that an application for review of the judgment passed in a reference under Section 66 of the Indian I.T. Act, 1922, is not maintainable, for a Tribunal which determines the questions referred under that section does not operate as a civil court so as to attract the provisions of the Civil Procedure Code. The Nagpur High Court refers to a decision of the Allahabad High Court in Kajori Mal Kalyan Das v. CIT [1930] 4 ITC 60, where it has been held that for the reason that this kind of an opinion is not a decree or order there could be no review of such a judgment. Another case that is referred to by the Nagpur High Court in the decision aforementioned is that of the Calcutta High Court in CIT v. Hungerford Investment Trust Ltd. : [1935]3ITR188(Cal) , where it had been held that the court when acting under the powers conferred by S. 66 of the Indian I.T. Act, 1922, was exercising a special jurisdiction and that its proceedings were not governed by the Code of Civil Procedure and that no review lay.

6. Mr. Rabindranath Menon, learned counsel for the revenue, also placed before us the decision of a Full Bench of this court in K. Ahamad v. CIT : [1974]96ITR29(Ker) . The facts of the case as clearly summarised in the head-notes in the reports are as follows :

'For the assessment year 1963-64, the petitioner filed his return on September 8, 1966. The income returned was less than 80 per cent. of the total income assessed. Penalty proceedings were started by the Income-tax Officer and referred to the Inspecting Assistant Commissioner. That officer held that the assessee had not rebutted the presumption laid down in the Explanation to Section 271(1)(c) of the Income-tax Act, 1961, and levied penalty. On appeal, the Appellate Tribunal held that as the assessment year was 1963-64 and as the said Explanation to Section 271(1)(c) was introduced subsequent to that assessment year, the Explanation was not applicable as it had no retrospective effect. At the instance of the revenue the Tribunal referred to the High Court the question whether the Tribunal was correct in law in holding that the Explanation to Section 271(1)(c) was not applicable to the case. In answering the reference, the court observed: 'the income returned was, therefore, less than 80 per cent. of the total income assessed. The Explanation to Section 271(1)(c) was thus directly attracted... The act of furnishing inaccurate particulars had taken place after the amendments were introduced in the section. Imposition of penalty by the Inspecting Assistant Commissioner was, therefore, justified......... The year ofassessment has nothing to do with the question of liability arising under Section 271(1)(c) of the Income-tax Act, 1961. And to apply the section as amended to an act committed after the amendment is not to give the section retrospective effect. The only question is whether the elements of the section had been satisfied when the act was committed'. The petitioner applied to the court under Section 256 of the Income-tax Act, 1961, and Section 151 of the Code of Civil Procedure praying for the deletion in the said judgment of the sentence 'Imposition of penalty by the Inspecting Assistant Commissioner was, therefore, justified or to clarify it.'

7. Chief Justice Govindan Nair, speaking for the court, pointed out that in the answer to the reference what had been held was that, in the circumstances of the case, for the year of assessment 1963-64, the Explanation was applicable. That was all that was meant and said : But unfortunately a sentence had crept in due to an accidental slip or omission or carelessness. It was not decided that the assessee was liable to be penalised. The learned judge further said (pp. 33, 34):

'The sentence must disappear from the judgment in the interest of justice for which alone courts have been constituted and we consider not only that it is our right to do so, but our imperative duty to delete that sentence from the judgment. We know no law which precludes us from doing so. The Judicial Committee of the Privy Council said long years ago that courts are constituted for the purpose of doing justice, that it is inherent in their discharge of functions that they must have the powers akin to what we propose now to exercise for removing any wrong impression that may arise if the sentence is read torn from the context. The Supreme Court in its decision in Master Construction Co. (P.) Ltd. v. State of Orissa : [1966]3SCR99 has clearly, if we may say so with great respect, delineated the ambit of the meaning of the words 'accidental slip or omission' arising in a judgment. That Section 152 of the Code of Civil Procedure is inapplicable, Section 151 is also inapplicable, that this court in exercising a jurisdiction quasi-judicial in. nature in answering a question referred to us at the instance of the assessee or the department and so we have no inherent powers arising from these provisions even if accepted cannot be a ground for rejecting the prayer in the petition. The power we think we have is apart from the sections. Section 151 of the Code of Civil Procedure does not confer any inherent power on a court. The section only saves that power. The power was there even without the section particularly in a court of record which a High Court is and apart from the section what inherent power existed exists now and we have no doubt that as long as we follow the system of jurisprudence we have been following the law will continueto make that power available. Errors can creep in and there can be omissions, and if there are accidental errors or omissions, we conceive that we have the jurisdiction to correct those errors and rectify those omissions. The principle is that no act of a court shall ever injure a party.

We have been referred by counsel for the department to three decisions, the earliest of which is in CIT v. Tehri-Garhwal State [1934] 2 ITR 1 . A passage from page 8 had been quoted for the proposition that if this court had construed a statute in a particular manner in answering a question referred to it by the Income-tax Appellate Tribunal, that construction cannot be replaced by another even if the court is satisfied that the earlier construction laid on it is erroneous. What the court in that case was ordered to do was to reverse the decision taken by the court for which of course this court has no jurisdiction. That is not the matter before us and we do not think that the decision has any application. Similarly, the decision in Seth Mathuradas v. CIT lays down the same proposition. The provision for review contained in Order XLVII of the Code of Civil Procedure will not apply in reviewing a judgment answering questions referred to this court under Section 256 of the Act and will be of no assistance in deciding this case. The Allahabad High Court in the decision in Roop Narain Ramchandra (P.) Ltd. v. CIT : [1972]84ITR181(All) has expressed the view that Section 151 of the Code of Civil Procedure has no application when this court functions in its advisory jurisdiction in answering questions referred to it under the Income-tax Act. With utmost respect we are unable to accept this proposition. The question really is not whether Section 151 in terms would apply or not. As we indicated earlier this court has the inherent jurisdiction to correct errors and omissions arising from accidental slips. We have no doubt that this inherent power exists in the court from the very nature of its constitution and purpose. It is paramount that courts must do justice and if any errors arising from accidental slips or omissions creep into judgments, which can result in injustice, such errors must be removed.' (Underlining* ours).

8. Mr. T.L. Viswanatha Iyer appearing for the petitioner on the other hand would lay stress on the fact that as per the statutory provisions the reference by the Tribunal is to a court established by law. The procedure in that court should govern the matter. The right of review would, therefore, be implicit. It might be noted that in National Sewing Thread Co. Ltd. v. James Chadwick and Bros. Ltd. : [1953]4SCR1028 , Justice Mahajan (as he then was), who was speaking for the Supreme Court, in considering Section 76(1) of the Trade Marks Act, 1940, which provides that an appeal would lie from any decision of the Registrar of Trade Marks Act to the High Court having the jurisdiction, had said that though the Trade Marks Actdoes not provide or lay down any procedure for the future conduct or career of the appeal in the High Court, obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that court and in accordance with the provisions of the charter under which that court is constituted and which confers on it power in respect of the method and manner of exercising that jurisdiction. The learned judge had said that the rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. The learned judge had referred to the observations in National Telephone Co. Ltd. v. Postmaster-General [1913] AC 546 (HL) made by Lord Chancellor Viscount Haldane where it was said that when a question is stated to be referred to an established court without more, it imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision likewise attaches. The same principle had been expressed by the Privy Council in Adaikappa Chettiar v. Chandrasekhara Thevar . That decision stated that where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal would lie if authorised by such rules notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal. The learned judge had also referred to the decision in Secretary of State for India v. Chellikani Rama, Rao ilr [1916] Mad 617 ; AIR 1916 PC 21, where it was observed thus:

'It was contended on behalf of the appellant that all further proceedings in courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships' opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court, that court is appealed to as one of the ordinary courts of the country, with regard to whose procedure, orders and decrees the ordinary rules of the Civil Procedure Code apply.'

9. In the decision in Collector, Varanasi v. Gauri Shanker Misra : [1968]1SCR372 , justice Hegde, speaking for the SupremeCourt, had said that in deciding an appeal under Section 19(1)(f) of the Defence ofIndia Act, 1939, against an order of an arbitrator, the High Court functions as a 'court' and not as a designated person and the decision by theHigh Court is a 'determination'. Therefore, it is within the competenceof the Supreme Court to grant special leave under Article 136 of the Constitution against such a decision.

10. Mr. Viswanatha Iyer has also brought to our notice a decision of the Delhi High Court in L. Bansi Dhar and Sons v. CIT [1978] HI ITR 330, where the Division Bench of that court had said that, in a reference to the High Court under Section 66 of the Indian I.T. Act, 1922, or Section 256 of the I.T, Act, 1961, the High Court has inherent jurisdiction or power to stay, in a proper case, the recovery of the tax pending the disposal of the reference. It is well settled that the High Court, as a 'court', has inherent jurisdiction to act ex debito justitiae if the circumstances of a case so demand. The inherent jurisdiction or power is inherent in the High Court, because it is a 'court', and is unrelated to and independent of the nature of its jurisdiction, advisory, consultative, original, appellate or revisional, in the case before it.

11. We might point out that the jurisdiction of the High Court in a reference under Section 256 of the I.T. Act, 1961, is a special jurisdiction of advisory or consultative nature and not original, appellate or revisional jurisdiction. Though it is well settled that the High Court, as a 'court', has inherent jurisdiction to act ex debito justitiae if the circumstances of a case so demand and such inherent jurisdiction or power is inherent in the High Court because it is a court and is unrelated to and independent of the nature of its jurisdiction, in regard to the power of review, unless it is expressly conferred, that cannot be so exercised. The power of review is not conferred on the High Court in the matter of a reference under the I.T. Act. In the absence of specific conferment of power it is too much to say that the High Court could exercise that power. Exercising of the review power cannot be in the exercise of an inherent power as Chief Justice Govindan Nair so clearly pointed out in K. Ahamad v. CIT : [1974]96ITR29(Ker) , The High Court exercising inherent power in a reference under the Indian I.T. Act, 1922, acts there independent of the powers conferred under the Civil Procedure Code. We are in agreement with the view expressed by the Nagpur High Court as early as in 1940 in Seth Mathuradas v. CIT , that the court when acting under the powers conferred by Section 66 of the Indian I.T. Act, 1922 corresponding to present Section 256 of the Act, 1961), was exercising a special jurisdiction and that its proceedings were not governed by the Code of Civil Procedure. In the present application for review what is sought to be corrected is not a mere clerical or accidental error. The petitioner is invoking the powers of a civil court under Order 47, Rule 1, C.P.C. In the jurisdiction conferred on it the High Court cannot exercise that power.

12. The principle that when a matter comes to the High Court, the procedure that is followed there would apply does not mean in the context of the proceedings under the Indian I.T. Act, 1922, that the provisions of theCivil Procedure Code would apply as such. One would have to take into account the nature of the jurisdiction that the High Court is exercising in the matter. As pointed out earlier in the case of reference under the I.T. Act, the High Court is exercising an advisory or consultative jurisdiction. The copy of the decision rendered by the High Court is to be forwarded to the appropriate forum functioning under the I.T. Act for enabling that Tribunal to dispose of the case in conformity with the High Court's decision. As the Privy Council said in CIT v. Tehri-Garwal State [1934] 2 ITR 1, the decision becomes binding as between the parties in the particular case. If the judgment has expounded a wrong construction of the Act or made any mistake other than a clerical or accidental error an appeal against it was open. There is no other procedure by which such mistake could be corrected.

13. We, therefore, hold that the petition for review is not maintainable and the same is dismissed. We make no order as to costs.


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