COMMISSIONER OF INCOME TAX V. MS H.P STATE INDUSTRIAL CORPORATION LTD.

RP/90/2015

AI Insights

The case involves three review petitions filed by the Commissioner of Income Tax against the H.P. State Industrial Development Corporation Ltd, challenging the judgments passed by the High Court on 24.5.2014. The petitions argued that the court had overlooked relevant provisions of the Income Tax Act, particularly section 115 JB, and failed to consider a Supreme Court judgment in Indo Rama Synthetics India Ltd Vs. Commissioner of Income Tax. The High Court, however, found that these issues were adequately addressed in the original judgment and that the review petitions did not meet the criteria for maintaining a review under Section 114 read with Order 47 Rule 1 of the CPC.

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 740226 (HC-HIMACHAL_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 27-10-2015
• Assessment Year: misc
• Other Referred Cases: Indo Rama Synthetics India Ltd Vs. Commissioner of Income Tax, New Delhi (2011) 2 SCC 168
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: VISHAN MOHAN; ADITYA SOOD
• Assessee Lawyers: VINAY KUTHIALA; VANDANA KUTHIALA
• Keywords: Error apparent on record; Income Tax Act; Indo Rama Synthetics India Ltd Vs. Commissioner of Income Tax; Review petition; Section 115 JB
• Section: 114; 47; 115-JB

Judgement Text

"IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.P No.88 of 2015 a/w R.P. Nos.89 and 90 of 2015. Reserved on 7.10.2015 Date of decision: 27.10.2015. Rev Petition No. 88 of 2015 Commissioner of Income Tax …Petitioner Versus H.P. State Industrial Development Corpn Ltd …Respondent Rev Petition No. 89 of 2015 Commissioner of Income Tax …Petitioner Versus H.P. State Industrial Development Corpn Ltd …Respondent Rev Petition No. 90 of 2015 Commissioner of Income Tax …Petitioner Versus H.P. State Industrial Development Corpn Ltd …Respondent Coram: The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. 2 Whether approved for reporting?1 Yes. For the Petitioners: Mr.Vinay Kuthiala, Sr. Advocate with Ms. Vandana Kuthiala, Advocate. For the Respondents: Mr.Vishan Mohan and Mr. Aditya Sood, Advocates. Tarlok Singh Chauhan, J. The Revenue has filed these review petitions by invoking the provisions of Section 114 read with order 47 Rule 1 of CPC to contend that there is an error apparent on the record in the judgments passed by this Court on 24.5.2014. 2. The review of judgment has primarily been sought on the ground that this court while passing the impugned judgment has not considered the relevant provisions of the Income Tax Act (for short the ‘Act’), more particularly section 115 JB and has further failed to take into consideration the effect of the judgment rendered by the Hon’be Supreme Court in Indo Rama Synthetics India Ltd Vs. Commissioner of Income Tax, New Delhi (2011) 2 SCC 168. Though this provision had not only been cited, but argued at length. Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 3 3. Before adverting to the merits of such contention, scope of review is first required to be borne-in-mind. 4. This Bench had already considered the scope of judicial review in (i) M/s Harvel Agua India Pvt Ltd Vs. State of HP & ors, Review Petition No.4084 of 2013 decided on 9.7.2014; (ii) K.P. Singh Vs. High Court of HP & ors, Civil Review No.2 of 2012, decided on 12.11.2014 and recently in Rajinder & ors Vs. Gokal Chand, review petition No.91/2015 decided on 12.8.2015, wherein after referring to the case law, this Bench has culled out certain broad principles regarding maintainability/non maintainability of the review petition and the same are as under: “(A) When the review will be maintainable:- (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record’ (iii) Any other sufficient reason. (B) When the review will not be maintainable:- 4 (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negative. (x) Review is not maintainable on the basis of a subsequent decision/judgment of a coordinate or larger Bench of the Court or of a superior Court. 5 (xi) While considering an application for review, court must confine its adjudication with regard to the material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent. (xii) Mere discovery of a new or important matter or evidence is not sufficient ground for review. The parties seeking review has also to show that such mater or evidence was not within its knowledge and even after exercise of due diligence, the same could not be produced before the Court earlier.” 5. Adverting to the facts, it would be noticed that the submissions now being made by the petitioner are contradicted by the record. It is evident from the perusal of the judgment that not only Section 115 JB, but even the judgment rendered by the Hon’ble Supreme Court in Indo Rama’s case (supra) has been considered in detail in paragraphs 25 to 33 of the judgment and it is after taking into consideration the aforesaid provision and judgment of the Hon’ble Supreme Court that the following conclusion has been arrived at:- “34. Therefore, in view of the discussions above, it can be safely concluded that Section 115 JB of the Act, provides that any amount credited to 6 the profit and loss account on account of amounts withdrawn from the reserve or provision had to be reduced from the book profit with an exception that if such reserve or provision is out of reserve created prior to or before 1.4.1997 and, such reserve has been created not by way of debit to the profit and loss account, then the same will not be permitted to be reduced from the net profit as per profit and loss account.” 6. It is clear from the aforesaid discussion that the questions now sought to be raised in these petitions cannot be gone into because the power of review cannot be exercised on the ground that the decision is incorrect or erroneous on merit, as the same lies only within the ambit of higher court having appellate power. It is the appellate court which alone is in a position to correct the error committed by the subordinate courts by virtue of power of appeal conferred on the said court by some statute, of course subject to the exception that the error is otherwise apparent on the face of record and not an error which has to be fished out and searched. Under the guise of review, the parties are not entitled 7 to re-hearing and this Court while exercising power of review cannot sit in appeal over its own order. 7. Having said so, it can safely be concluded that the petitioners have failed to make out a case within the four corners of Section 114 read with Order 47 Rule 1 of the Code of Civil Procedure. Accordingly, we find no merit in these Review Petitions and the same are dismissed, leaving the parties to bear their costs. ((Mansoor Ahmad Mir), Chief Justice. (Tarlok Singh Chauhan), Judge. October , 27, 2015 (sl) "