IN THE HIGH COURT OF JUDICATURE AT BOMBAY.itatonline.org/archives/wp-content/files/vip_industries_west_coast_review_power.pdfIN THE HIGH COURT OF JUDICATURE AT BOMBAY. ORDINARY ORIGINAL

RPA NO.33/2010 1 Judgment

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

ORDINARY ORIGINAL CIVIL JURISDICTION

REVIEW PETITION NO.33 OF 2010IN

NOTICE OF MOTION NO.2482 OF 2008IN

CENTRAL EXCISE APPEAL NO.136 OF 2009.

RPA NO. 33/2010.

VIP Industries Ltd., a company duly registered under Companies Act, 1956 and having its office at 78A, MIDC Estate, SatpurNashik – 422 007, Maharashtra.

....PETITIONER.(Org. Appellant)

// VERSUS //

The Commissioner of Central Excise,Kendriya Rajaswa Bhawan, GadkariChowk, Old Agra Road, Nashik – 422 002, Maharashtra.

....RESPONDENT.(Org. Respondent)

Mr. V. Sridharan i/b. PDS Legal for the petitioner.Mr. Pradeep S. Jetly with Mr. R.B. Pardeshi, Advocates for Respondent.

CORAM : V.C.DAGA AND R.M.SAVANT, JJ.

Date of Reserving Judgment : 26 .10.2010.Date of Pronouncing Judgment : 16.12.2010.

http://www.itatonline.org


JUDGMENT ( Per : V.C.Daga, J.)

This review petition raises question : Whether the High Court has

[de hors of the provisions of the Central Excise Act, 1944 (“The Act” for short)]

power to review its own decision rendered in appeal filed under the Act.

FACTUAL BACKGROUND :

Factual background giving rise to the present review petition is as

under :

2. The petitioner, being aggrieved by portion of final order

No.A/702704/07/CII/EB in Appeal No.E/3077 to 3079/04MUM passed by the

Customs, Excise and Service Tax Appellate Tribunal (“The Tribunal” for short),

filed the subject Central Excise Appeal under Section 35G of the Act. There was a

delay of four days in filing the appeal. The petitioner took out a Notice of Motion

No.2482 of 2008, seeking condonation of delay in filing the subject Central Excise

Appeal.

3. The learned Division Bench of this Court, for the reasons set out in

the judgment and order dated 29th August, 2008 in the case of Commissioner of

Central Excise, PuneII Vs. Shruti Colorants Ltd., was pleased to hold that High

Court has no jurisdiction to condone delay in filing Central Excise Appeal under

Section 35G of the Act. Consequently, dismissed the application for condonation

of delay.



4. In the case of Commissioner of Customs Vs. Sujog Fine Chemicals India

Ltd., another Division Bench of this Court by judgment and order dated 13th

August, 2008, held that in the light of Section 29(2) of the Limitation Act, 1963,

in an appeal filed under Section 130 of the Customs Act, 1962 High Court was

empowered under Section 5 of the Limitation Act to condone the delay.

5. In view of the above conflicting decisions of the two learned Division

Benches on the issue a Full Bench was constituted by the learned Chief Justice to

which one of us (Daga, J) was a party to decide the question framed herein

below vide its judgment and order dated 19th December, 2008 : whether this

Court is empowered to condone delay in filing appeals under Sections 35G of the

Act ?

6. A full bench of this Court following the judgments in Mukri Gopalan

Vs. Cheppilat Puthanpurayal Abbubacker, reported in AIR 1995 SC 2272, State of

West Bengal and Others Vs. Karthik Chandra and others, reported in 1996(5) SC

342 and CIT Vs. Velingkar Brothers, reported in 2007(289) ITR 382 agreed with

the view expressed by the learned Division Bench in Commissioner of Customs Vs.

Sujog Chemicals dated 13th August, 2008 and held that Section 5 of the Limitation

Act would be applicable to appeals filed under Section 35G of the Act.



7. The petitioner, in the aforesaid backdrop, in view of the law laid

down by the Full Bench applied for review of the order of this Court dated

29.08.2008 whereby the application for condonation of delay filed by the

petitioners in filing Central Excise Appeal was dismissed vide order dated 5th

January, 2009 for want of authority or jurisdiction to condone the delay.

8. Before the above review petition could be considered by this Court

the Hon'ble Supreme Court in the case of Commissioner of Customs & Central

Excise Vs. Hongo India (P) Ltd., reported in 2009 236 ELT 417 (SC) held that the

High Court did not have power to condone delay in appeal and provisions of the

Limitation Act, 1963 did not apply. The time limit prescribed in Section 35H of

the Central Excise Act was absolute and that the Court did not have power under

Section 5 of the Limitation Act, 1963 to extend period of limitation.

9. The Parliament to overcome above Judicial Verdict : by Finance Act,

2009 amended Section 35G of the Central Excise Act, 1944 with retrospective

effect from 1st July, 2003 giving powers to the High Court to condone delay in

filing the appeals under that section.

THE ISSUE :

10. The aforesaid judicial and legislative events have given rise to a legal

question : Whether in the absence of an express provision, this Court can exercise

power of review in a matter arising under the Act.



POINTS URGED :

This is a unique case wherein the petitionersassessees as well as

respondentRevenue are jointly canvassing in one voice that this Court has a

power of review even in absence of specific provision within statutes in that

behalf. Both of them want that the question should be answered in affirmative

holding power of review in favour of this Court.

11. Mr. Sridharan, learned counsel representing group of assesses, would

submit that the retrospective amendment can be a ground for review as it can be

styled an error on the face of record. Reliance is placed on a judgment of the

Supreme Court in the case of Raja Shatrunji Vs. Mohammad Azmat Azim Khan,

reported in (1971) 2 SCC 200, holding that one of the grounds for review is an

error apparent on the face of record and where a statute has been amended

retrospectively, a judgment applying the unamended law would constitute an

error apparent on the face of record.

12. Mr.Sridharan further urged that the High Court is a Court of record.

Under its plenary jurisdiction the High Court has power to review. Reliance is

placed on a judgment of the Supreme Court in M.M. Thomas Vs. State of Kerala,

reported in 2000(1) SCC 666 and the Commissioner of Customs and Central Excise

Vs. Hongo India (P) Ltd. (supra). He also placed reliance on the judgment of the

Hon'ble Supreme Court in Shivdeo Singh Vs. State of Punjab, reported in 1963 AIR



SC 1909 holding that power of review inheres in every Court of plenary

jurisdiction to prevent miscarriage of justice or to correct grave and palpable

errors committed by it. The learned counsel also placed reliance on a Full Bench

judgment of Patna High Court in the case of D.N. Singh Vs. CIT, reported in

(2010) 325 ITR 349 wherein the judgment of the Hon'ble Supreme Court in

M.M. Thomas (supra) is followed.

13. Mr. Sridharan also urged when a special enactment adopts the

procedure adopted by the ordinary Civil Court then, according to him, the

presumption is that the practice and procedure of that Court will apply. He while

developing this submission pressed into our service subsection (9) of Section 35G

of the Central Excise Act, which reads as under :

“35G.(9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.”

Based on the above provision, he went on to urge that the said section

does not restrict the jurisdiction of the High Court to only the provisions of the

Code of Civil Procedure relating to the appeals but it brings along with it other

related provisions. In support of his submission he placed reliance on the Privy

Council judgments in the case of Secretary of State for India Vs. Chelikani Rama

Rao, 1916 L.R. 43 IA 192 followed by Privy Council in its another judgment in

the case of Hem Singh Vs. Basant Das, 1936 L.R. 63 IA 180, reiterated in its third



judgment in R.M.A.R.A. Adiakappa Chettiar Vs. R. Chandrashekhara Thevar,

reported in 1947 L.R. 74 I.A. 264.

14. Mr. Sridharan also placed reliance on the judgment of High Court of

Karnataka in the case of J. Nandanlal Javantaraj Vs. V. Narayanaswamy, reported

in AIR 1975 Kant 237, wherein, in the light of the pronouncement of the Hon'ble

Supreme Court in the case of National Sewing Thread Co. Ltd. Vs. James Chadwick

& Bros. Ltd., reported in AIR 1953 SC 357 and that of the Privy Council in

R.M.A.R.A. Adiakappa Chettiar (supra) the Court held that once the power to

adjudicate is given in special enactment to resolve such dispute, according to the

ordinary rules of practice and procedure then it includes power to review

judgment and orders.

15. Mr. Sridharan in all fairness, also brought to our notice a judgment of

the Hon'ble Supreme Court in the case of Patel Narshi Thakershi and others Vs.

Shri Pradyumansinghji Arjunsinghji, reported in 1971 (3) SCC 844 wherein the

Supreme Court dealt with the power of review holding that it is well settled that

the power to review is not an inherent power, it must be conferred by law either

specifically or by necessary implication. According to him, power of review of a

Court has been expressly provided for in the Code of Civil Procedure under

Section 114 and Order 47 thereof. He, thus, urged that this Court has ample

power to review its earlier order refusing to condone the delay. He further



submits that this Court did not examine the merits of the prayer for condonation

of delay for want of specific power at the relevant time but now in view of the

changed legal scenario, this Court should consider the prayer on its own merits.

He was heard on the prayer for condonation of delay.

16. Mr. Jetly and Mr. Pardeshi, learned counsel appearing for Revenue

did not contest the submissions made by Mr. Sridharan, though they were

appearing against him. Reliance is placed on a judgment of the Hon'ble Supreme

Court in the case of M.K. Venkatchalam Vs. Bombay Dying and Manufacturing Co.

Ltd., reported in 1958 ITR 143 SC, wherein the Hon'ble Supreme Court held that

in case of apparent error on the face of record the power to review can be

exercised. The learned counsel for the Revenue submits that the said judgment

has been reiterated by the Supreme Court in the case of Consolidated Pnumatic

Tool Co. India Ltd. Vs. Commissioner of Income Tax, 1994 209 ITR 277 Bom.

17. Mr. Jetly also placed reliance on a judgment of learned Division

Bench of this Court in the case of Deepali Exports Vs. Union of India, decided on

30.04.2010 while dealing with Review Petition No.26 of 2010, wherein it has

been held that the Act does not confer any power in the High Court which acts as

appellate Court under the Customs Act to exercise power of review. However, the

Division Bench invoked inherent power and reviewed its own order. With these

submissions, the Revenue also urged that the power of review exists in favour of



this Court and that should be exercised in the interest of justice and each case

should be considered on its own merits for condonation of delay.

CONSIDERATION :

18. Heard both parties canvassing their contentions without any

disagreement. Now, this Court is called upon to decide the issue on its own

merits.

19. At the outset, it is not necessary to go into the basic question :

Whether this Court has power to condone delay ? Though judicial opinions at

one point of time were contrary, but they having been resolved by virtue of

amendment to Section 35G of the Act by Finance Act, 2009, whereby subsection

(2A) was inserted with retrospective effect from 1st July, 2003 conferring power

to the High Court to condone delay in filing appeals under Section 35G. This

amendment, being retrospective in nature, would be deemed to have been in

existence on 25th August, 2008 when this Court passed an order holding that this

Court did not have power to condone delay in filing appeals under Section 35G

of the Act. Now, it can conveniently be held that this Court has a power to

condone delay in view of subsequent legislative change.

20. Having said so, it is not in dispute that High Court is a Court of record

as envisaged under Article 215 of the Constitution, having inherent powers to



correct record. The Hon'ble Supreme Court in M. M.Thomas Vs. State of Kerala,

reported in 2000(1) SCC 666 has reiterated the said status of the High Court.

The case related to the decision of the Forest Tribunal under the Kerala Private

Forests (Vesting and Assignment) Act, 1971 and judgment of the High Court in an

appeal against the decision of the Forest Tribunal. Later the State moved an

application for review under Section 8C of the Kerala Private Forests Act.

Grounds on which review was sought was not covered by the situations

mentioned in Section 8C. No specific power to review its decision was provided

under Section 8C. Review was allowed by the High Court without relying on

Section 8C. Aggrieved party appealed to the Supreme Court. The Supreme

Court concluded that the High Court is a court of record and has inherent power

to correct its record. It further held that it was High Court's duty to correct its

record. The High Court's power in that regard is said to be plenary.

21. In Commissioner of Customs and Central Excise Vs. Hongo India (P)

Ltd., reported in 2009 (236) ELT 417 (SC), the Supreme Court approved this

decision in M.M. Thomas (supra) and said that the High Court possesses all

powers in order to correct the errors apparent on the face of record.

In D.N. Singh Vs. CIT, reported in (2010) 325 ITR 349, the full bench

of Patna High Court held High Court has power to review its order under Section

260A of Income Tax Act. It referred to paragraphs 28 and 29 of the said

judgment and held that as laid down in M.M. Thomas and approved in Hongo



India (supra), the High Court has the inherent power of review, being a court of

plenary jurisdiction.

The Supreme Court in Shivdeo Singh Vs. State of Punjab, reported in

1963 AIR SC 1909 held that power of review inheres in every court of plenary

jurisdiction to prevent miscarriage of justice or to correct grave and palpable

errors committed by it.

22. Mr. Sridharan also forcefully canvassed when special enactment in

ordinary Court then the presumption is that practice and procedure of that court

will apply. Let us examine strength of the submission made in this behalf.

In Secretary of State for India Vs. Chelikani Rama Rao, reported in

1916 L.R. 43 IA 192, the Privy Council was dealing with proceedings under

Madras Forest Act. Section 10 of the Act provided that an appeal against an order

passed by the forest settlement officer lay to the District Court. The appellant

contended that further proceedings in Courts in India were incompetent as they

were excluded in terms of the statute. Rejecting this contention, the Privy Council

held as follows :

“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 I appeared 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. This is in full accord with the decision of the Full bench in Kamaraju Vs. Secretary of State for India in Council (1), a decision which was given in 1888 and has been acted on in Madras ever since.”



In Hem Singh Vs. Basant Das, reported in 1936 L.R. 63 IA 180, the

Privy Council referred to the decision of the National Telephone Co.Ltd. Vs.

Postmaster General, reported in 1913 AC 546 where it was held 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 appeal likewise attaches.” Further, the

Privy Council held that :

“Having regard to the character, the variety, and the importance of questions to be dealt with by a tribunal, and to the terms in which the right of appeal to the High Court is provided by the section, their Lordships are of the opinion that the provisions of Civil Procedure Code with reference to appeals to His Majesty apply to decrees of the High Court made under S. 3 of the Sikh Gurdwaras Act.”

In R.M.A.R.A. Adiakappa Chettiar Vs. R. Chandrashekhara Thevar,

reported in 1947 L.R. 74 I.A. 264 the Privy Council held as under :

“The true rule is that whether a legal right is that 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 lies, if authorized by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.” (Emphasis supplied)

23. The aforesaid judgments lean in favour of the view canvassed by Mr.

Sridharan and categorically hold that the practice and procedure of the ordinary

Court will apply if the special enactment refers to and adopts the practice and

procedure to be followed by the ordinary Court. The submission made by Mr.

Sridharan in this behalf deserves acceptance.



24. Next submission of Mr. Sridharan is that Section 35G(9) does not

restrict the jurisdiction of the High Court to only the provisions of the Code of

Civil Procedure relating to appeal. Let us now turn to the provisions of sub

section (9) of Section 35G of the Act to examine whether or not it restricts the

jurisdiction of the High Court to the provisions of the Code of Civil Procedure

relating to appeal only.

25. Section 35G of the Central Excise Act provides for appeal to High

Court against an order of the Tribunal. Subsection (9) thereof provides that the

provisions of Civil Procedure Code, 1908 relating to appeals to the High Court

shall as far as may be apply in the case of appeals under this Section. Sections 96

to 108 and Order XLI of the Civil Procedure Code deal with appeals, whereas,

Section 114 and Order XLVII of the Civil Procedure Code deal with review. A

debate is raised whether in view of Section 35G(9) provisions of Code of Civil

Procedure relating to appeal alone applied to the High Court, while excluding

other provisions of the Code of Civil Procedure.

26. The dissection of Section 35G of the Act reveals that Subsections

35G (2), (2A), (3) till subsection 35G(8) provide for various procedures to be

applied by the High Court while deciding the appeals filed under Section 35G.

The procedure provided through various subsections may be in variance with

those provided in the Civil Procedure Code. Being a special enactment, sub



sections 2 to 8 of Section 35G will override a general law such as the Code of Civil

Procedure on these aspects. However, in circumstances not governed by these

subsections, the general provisions of the Code of Civil Procedure relating to

appeals will continue to apply. Section 35G(9) reiterates the same by way of

abundant caution, merely to ensure that the event of conflict between Section

35G and the Civil Procedure Code, the procedure under Section 35G (2) to (8)

will be applicable. It merely gives an overriding effect to these subsections of

Section 35G visavis the Code of Civil Procedure.

27. Assuming for the sake of understanding that subsection (9) of

Section 35G did not exist, the result would still be the same, particularly in view

of the principle enunciated in the judgments of the Privy Council, cited supra,

when an ordinary court is referred to by a special enactment, the ordinary law of

that court would apply and govern those proceedings notwithstanding absence of

specific provision in that behalf. However, to the extent that the special law

contains provisions contrary to the general law, the special law would prevail.

Therefore, Section 35G(9) is merely stating the obvious and has been enacted by

way of abundant caution. It would thus be incorrect to imply from this that other

general laws and powers of the High Court conferred by the Code of Civil

Procedure have been excluded.

In National Sewing Thread Co.Ltd. V. James Chadwick & Bros.Ltd,

reported in 1953 SC 357, the Hon'ble Supreme Court considered the question



whether from the decision of a single Judge of the High Court in an appeal arising

under the Trade Marks Act, 1940, a Letters Patent Appeal would lie to the

Division Bench of that Court. The Trade Marks Act did not provide for such

further appeal. The Hon'ble Supreme Court observed that after an appeal had

reached the High Court, the future conduct or career of that appeal 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 to the method and manner

of exercising that jurisdiction. Their Lordships held that the Letters Patent Appeal

was competent even though Trade Marks Act did not expressly provide for such

appeal. Their Lordships quoted with approval the observations of the Judicial

Committee of Privy Council in Adaikappa Chettiar V. Chandraserkhara Thevar

(cited supra).

28. At this stage, it is necessary to examine and understand the

observations made by the Hon'ble Supreme Court in the case of Patel Narshi

Thakershi and others Vs. Shri Pradyumansinghji Arjunsinghji, reported in 1971 (3)

SCC 844 wherein the Hon'ble Supreme Court observed that, it is well settled that

the power of review is not an inherent power. It must be conferred by law either

specifically or by necessary implication. The judgment is clearly distinguishable as

the issue before the Apex Court was absence of power in Government or its

delegate to make review; while in the case at hand issue is about the power of



Court to make review. If the judgment is read in its proper perspective, it will be

clear that the Court was dealing with the provisions of the Saurashtra Land

Reforms Act, 1951 wherein neither powers were given to the State Government

or its delegate to review its own order under Section 63 of the Act nor the

proceedings were to be tried following the procedure provided under the Code of

Civil Procedure or the procedure adopted by the Civil Court. The proceedings

were to be tried by Tenancy Authorities and Tribunal which did not have power

to review its own order. Understood in the context in which the observations are

made, we do not see any conflict between the views expressed in the case of Patel

Narshi Thakershi (cited supra)and the other cases referred to herein above. This

view is in consonance with the view taken by the Privy Council as well as the

Hon'ble Supreme Court in the cases referred to herein above. At any rate, the very

same judgment lays down that the power of review can be spelt out by necessary

implication. The necessary implication required to bestow power of review is to

be found under Section 35G(9) of the Act as discussed herein above.

29. In the light of the above pronouncements of the Supreme Court and

the Privy Council, ordinary Courts which have been seized of a dispute in respect

of a legal right or liability under a special enactment, should be regarded as

having power to adjudicate such dispute according to the ordinary rules of

practice and procedure which would include the power to review judgments and

orders.



30. On the above premise, in our considered opinion, even in the absence

of an express provision in the Act conferring the power of review, this Court has a

power to review its decision.

31. Having held power to review exists in favour of this Court even in

absence of specific or express provision in that behalf, now let us examine

whether retrospective amendment could be a ground for review.

In Raja Shatrunji Vs. Mohammad Azmat Azim Khan, reported in

(1971) 2 SCC 200, the Hon'ble Supreme Court held that one of the grounds for

review is an error apparent on the face of record and where a statute has been

amended retrospectively, a judgment applying the unamended law would

constitute an error apparent on the face of record. Relevant portion from

Paragraph 13 of this judgment is extracted below :

“Counsel for the appellant submitted that when the High Court decided the matter, the High Court applied the law as it stood and a subsequent change of law could not be a ground for review. The appellant's contention is not acceptable in the present case for two principle reasons; first, it is not a subsequent law. It is the law which all along was there from 1952. The deeming provision is fully effective and operative as from 25th May, 1953 when the 1952 Act came into force. The result is that the Court is to apply the legal provision as it always stood. It would, therefore, be error on the face of record. The error would be that the law that was applied was not the law which is applicable . ”(Emphasis supplied)



32. Having reached to the conclusion that the Review Petition is

maintainable and review of the subject order is permissible, let us turn to consider

the merits of the prayer seeking condonation of delay in filing appeal. The delay

in filing appeal is of four days. The Revenue has no objection for condonation of

delay in the Review Petition filed by the Assessee. Even otherwise considering the

good and sufficient cause shown, the delay in filing appeal stands condoned.

Order accordingly.

Registry is directed to register the appeals as well as Review Petitions

filed by the Revenue and place it before the Bench assigned with the subject

matter involved in the appeal. Review petition is allowed in terms of this order

with no order as to costs.

JUDGE JUDGE

RR.


1

hvnIN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE OF MOTION NO. 1868 OF 2009WITH

REVIEW PETITION (L) NO. 36 OF 2009IN

INCOME TAX APPEAL NOL. 750 OF 2008

The Commissioner of Income Tax-1,Room No. 301, Aayakar Bhavan, M.K. Road, Mumbai 400 021 ... Petitioner

Versus

M/s. The West Coast Paper Mills Ltd.Shreeniwas House, Hazarimal SomaniMarg, Fort, Mumbai 400 001 ... Respondents

Mr. Suresh Kumar for the Appellant.

Mr. Niraj Seth i/by Mr. A.K. Jasani for Respondents.

CORAM : FERDINO I. REBELLO & R.S. MOHITE, JJ.

DATED : NOVEMBER 21, 2009

ORAL JUDGMENT (Per Ferdino I. Rebello,J.):

1. There is a delay of 36 days in preferring review petition. There is an affidavit

in support of the motion by Premanand J. ACIT showing cause.

On the other hand, on behalf of the respondents, their learned counsel has

drawn our attention to the order in Notice of Motion No. 787 of 2009 in Income Tax

Appeal (L) No. 3592 of 2008 decided on 8.7.2009 where relying on the judgment of

the Supreme Court this court has taken a view that in an appeal preferred under

Section 260 A of the Income Tax Act, there is no power to condone delay. In our

opinion, the judgment is clearly distinguishable. In so far as appeal is concerned, the

appeal is conferred by Statute and it is in that context that the court took a view that


2

there is no power of condonation of delay.

3. The question before us is in the first instance, whether power of review has

been conferred under the provisions of Income Act, 1961. On behalf of the Review

Petitioner, the learned counsel draws our attention to the provision of Section 260A

of the Income Tax Act, which reads as under :

“260A. (1) An appeal shall lie to the High Court from

every order passed in appeal by the Appellate

Tribunal 1[before the date of establishment of the

National Tax Tribunal], if the High Court is satisfied

that the case involves a substantial question of law.

(2) 2[The Chief Commissioner or the Commissioner or

an assessee aggrieved by any order passed by the

Appellate Tribunal may file an appeal to the High

Court and such appeal under this sub-section shall

be] -

(a) filed within one hundred and twenty days from the

date on which the order appealed against is

3[received by the assessee or the Chief Commissioner

or Commissioner];

(b) 4[***];

(c) in the form of a memorandum of appeal precisely

stating therein the substantial question of law

involved.

(3) Where the High Court is satisfied that a

substantial question of law is involved in any case, it


http://www.manupatra.com/Search/dispsearch.aspx?nActCompID=44245&iPage=1&hText=#260Af1




3

shall formulate that question.

(4) The appeal shall be heard only on the question so

formulated, and the respondents shall at the hearing

of the appeal, be allowed to argue that the case does

not involve such question:

Provided that nothing in this sub-section shall be

deemed to take away or abridge the power of the

Court to hear, for reasons to be recorded, the appeal

on any other substantial question of law not

formulated by it, if it is satisfied that the case

involves such question.

(5) The High Court shall decide the question of law so

formulated and deliver such judgement thereon

containing the grounds on which such decision is

founded and may award such cost as it deems fit.

(6) The High Court may determine any issue which -

(a) has not been determined by the Appellate

Tribunal; or

(b) has been wrongly determined by the Appellate

Tribunal, by reason of a decision on such question of

law as is referred to in sub-section (1).

5[(7) Save as otherwise provided in this Act, the

provisions of the Code of Civil Procedure, 1908 (5 of

1908) relating to appeals to the High Court shall, as

far as may be, apply in the case of appeals under this

section.]” (emphasis supplied).

Relying on these provisions it is submitted that once the provisions of Code



4

of Civil Procedure pertaining to appeals is made applicable to appeal, the power of

review which is conferred by the Code of Civil Procedure must also be so read.

4. The Code of Civil Procedure has distinct provisions in so far as appeal and

review are concerned. Similarly Section 96 is the provision pertaining to first

appeals. Section 100 pertains to Second appeals and Section 114 is a power of

review. Order 41 provides for First appeal. Order 47 provides for Review. In other

words, there are distinct provisions in the Code of Civil Procedure pertaining to

appeals and Review. In that context, section 260A(7) has is to be read to mean the

provisions pertaining to appeal and not provisions pertaining to review.

5. The settled law is that the power of review must be specifically conferred.

The Supreme Court in Grindlays Bank Limited Vs. Central Government Industrial

Tribunal and Ors. 1980 (Supp) Supreme Court Cases 420 has made a clear

distinction between substantive review and procedural review. Substantive review

must be conferred whereas procedural review is inherent in every court or Tribunal.

This is what the court observed :.

"... The expression "review" is used in the two distinct

senses, namely (1) a procedural review, which is

either inherent or implied in a court or Tribunal to

set aside a palpably erroneous order passed

under a misapprehension by it, and (2) a review

on merits when the error sought to be corrected is one


5

of law and is apparent on the fact of the record. It is

in the latter sense that the court in Patel Narshi

Thakershi case held that no review lies on merits

unless a statute specifically provides for it.

Obviously when a review is sought due to a

procedural defect, the inadvertent error committed

by the Tribunal must be corrected ex debito justitiae

to prevent the abuse of its process and such power

inheres in every court or Tribunal .”

Thereafter that view has been reiterated in J.K. Synthetics Ltd. Vs. Collector

f Central Excise, 1996 (86) E.L.T. 472 (SC). This view has been reiterated by this

court in Chandrakant Butalal Shah Versus Union of India and Ors. in Writ Petition

No. 1505 of 2007 decided on 6th August, 2007.

Considering the above, we are clearly of the opinion that the power of

substantive review having not been conferred under the Income Tax Act, the review

as filed is not maintainable. Once the Review is not maintainable, the question of

considering whether there is sufficient cause does not arise. In the light of that,

Review Petition along with Notice of Motion dismissed.

(R.S. MOHITE, J.) (F.I. REBELLO,J.)


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