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Jaipur Finance and Dairy Product P. Ltd. Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Review Petition No. 2 of 1980
Judge
Reported in[1980]125ITR404(Raj)
ActsIncome Tax Act, 1961 - Sections 256; Code of Civil Procedure (CPC) , 1908 - Sections 151
AppellantJaipur Finance and Dairy Product P. Ltd.
RespondentCommissioner of Income-tax
Appellant Advocate Ladlilal Sharma, Adv.
Respondent Advocate S.M. Mehta, Adv.
Excerpt:
.....required to answer the question referred 'the petitioner in his application has not challenged the correctness of that order. (ii) the point which may be a good ground for an appeal may not be a good ground for an application for review. thus, an erroneous view of the evidence is no ground for review though it may be a good ground for an appeal......by its order, dated january 10, 1977.4. on march 8, 1977, the assessee filed the present review application on the ground that the default of the petitioner in not furnishing the paper book, occurred quite accidentally and not as a conscious or deliberate action on the part of the petitioner because the notice for filing the paper book issued by the registrar of this court was served upon the petitioner through one of its directors, shri banarsilal roongata, who is an old man keeping ill-health. at the time when the notice was served,-on account of his ill-health, he misplaced the notice and forgot about it. the petitioner-assessee came to know about the order, dated july 6, 1976, on september 17, 1976, when the petitioner's representative, shri ashok kumar, appeared before the.....
Judgment:

M.L. Shrimal, J.

1. The Income-tax Appellate Tribunal, Jaipur Bench, Jaipur, made a reference under Section 256(2) of the I.T. Act, 1961 (hereinafter referred to as ' the Act ').

2. The assessee failed to comply with the requirement of Rule 513 of the Rajasthan High Court Rules, 1952 (hereinafter referred to as ' the Rules '). In spite of notice by the Registrar the asses'see failed to submitthe paper book and also failed to appear on the date of the hearing, as a result of which the Division Bench of this court, on July 6, 1976, returned the reference made by the Income-tax Tribunal, Jaipur Bench, Jaipur, as unanswered.

3. The assessee filed an application for invoking its inherent power to recall its order, dated July 6, 1976, passed by the Division Bench of this court in D.B. Income-tax Reference No. 16 of 1977. Mr. Ladlilal Sharma, learned counsel for the assessee, frankly conceded before the court that in view of the decision in Roop Narain Ramchandra (P.) Ltd. v. CIT : [1972]84ITR181(All) the I.T. Act does not confer any power on the High Court to recall an order returning a reference unanswered. Section 151 of the Code of Civil Procedure (hereinafter referred to as ' the Code ') did not apply to a reference petition as the court was concerned with the advisory jurisdiction under the I.T. Act. On the basis of that submission this court rejected the application by its order, dated January 10, 1977.

4. On March 8, 1977, the assessee filed the present review application on the ground that the default of the petitioner in not furnishing the paper book, occurred quite accidentally and not as a conscious or deliberate action on the part of the petitioner because the notice for filing the paper book issued by the Registrar of this court was served upon the petitioner through one of its directors, Shri Banarsilal Roongata, who is an old man keeping ill-health. At the time when the notice was served,-on account of his ill-health, he misplaced the notice and forgot about it. The petitioner-assessee came to know about the order, dated July 6, 1976, on September 17, 1976, when the petitioner's representative, Shri Ashok Kumar, appeared before the Tribunal in response to a notice dated September 6, 1976. The contention of the petitioner is that on October 8, 1976, the assessee moved an application in this court praying that the order, dated July 6, 1976, returning the reference be recalled. That application came up for hearing on December 16, 1976. As the assessee's counsel was unaware of the decision in Jaipur Mineral Development Syndicate v. CIT : [1977]106ITR653(SC) he wrongly conceded before the court that Section 151 of the Code should not be invoked for recalling the order, dated July 6, 1976. Learned counsel further urged that Roop Narain Ramchandra (P.) Ltd. v. CIT : [1972]84ITR181(All) has been specifically overruled by the Supreme Court in the above-noted case and as such this court in exercise of its inherent powers could review its order, dated January 10, 1977. He has also filed an application under Section 5 of the Limitation Act, for condoning delay in filing the application for review, on the ground that the decision of the Supreme Court referred to above, came to the notice of the learned counsel on March 7, 1977, and he submitted the present application on March 8, 1977.

5. Learned counsel, appearing on behalf of the non-petitioner, has urged that the application dated March 8, 1977, was defective and the defects were removed on December 13, 1977. Besides, an application for condoning the delay was also not filed along with the application for review, but it was filed on March 15, 1977. He further urged that no review petition was maintainable against an order passed by this court in exercise of its inherent powers.

6. I have given my earnest consideration to the rival contentions. This court in its order dated January 10, 1977, placing reliance on different decisions mentioned in the impugned order, held : ' the law is well settled on the point that if the parties at whose instance references were made did not appear at the hearing, the court is not required to answer the question referred '. The petitioner in his application has not challenged the correctness of that order. His only submission is that this court had inherent powers to do justice and for doing that it could recall its previous order in exercise of its inherent powers.

7. The inherent power has its roots in necessity and its breadth is coextensive with the necessity. It enables a party to have the proceedings conducted in a manner consistent with justice and equity. The said powers are required to be exercised by virtue of its duty to do justice between the parties before it. In the order, dated January 10, 1977, this court had held that as the party at whose instance the reference was made did not appear before the court, the court was not required to answer the question referred and the court in exercise of its power refused to answer the question, I find no mistake apparent on the face of the record in the above noted order. A review is not the same thing as an order substitute for an appeal. The two proceedings differ in many particulars :

(i) The primary intention of a review is the reconsideration of the subject-matter by the same Bench while an appeal is a rehearing by another Tribunal.

(ii) The point which may be a good ground for an appeal may not be a good ground for an application for review. Thus, an erroneous view of the evidence is no ground for review though it may be a good ground for an appeal.

(iii) A review does not, of necessity, reopen the questions already decided between the parties.

8. The matter in issue is only reopened when the application for review is accepted, while in the case of an appeal the matter is reopened as soon as the appeal is admitted.

9. Thus, a power to review is a restricted power which authorises the court or the Tribunal which passed the order sought to be reviewed to look over through the order not in order to subtitute a fresh orsecond order, but in order to correct it or improve it because some material which it ought to have considered had escaped its consideration. This court has already held in the impugned order that the court had the power to refuse to answer the question referred in the absence of the parties at whose instance the reference was made. Correctness of this order has not been challenged. I find no reason to review the order dated January 10, 1977, passed by this court. Because, even if it is held that this court had the inherent powers to recall the order dated February 6, 1976, then also, it could have recalled the order only when it would have felt that the impugned order was apparently wrong.


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