2010 (4) TMI 894 - HC - Income Tax

Family arrangements - merger of order - principle of merger - held that - Supreme Court judgment in the case of Kunhayammed 2000 (7) TMI 67 - SUPREME COURT is an authority on the issue as towhether a judgment and order of the High Court or any tribunal wouldmerge with the order of the Supreme Court in case prayer for grant ofspecial leave to appeal is rejected. The aforesaid general principle of law regarding merger does not comein the way of the proposition advanced before us on behalf of the Income-tax Department. In the context of the Income-tax Act it has rightly been submitted that the Act is a code by itself and in the absence of any pro-vision for review against an appellate order passed under section 260A ofthe Act, no review can be exercised by the High Court. Hence, we are con-strained to hold that this review petition is not maintainable. Once review is not provided by the Income-tax Act, it would not beproper for us to exercise jurisdiction of review in the garb of exercise ofinherent power which normally is to be exercised only to correct clerical orsuch similar mistakes and not for going into the merits of the case once again.

Issues Involved:
1. Limitation period for filing the review application.
2. Maintainability of the review petition against the appellate order under section 260A of the Income-tax Act.
3. Merger of High Court and Supreme Court orders.
4. Inherent powers of the High Court to review its own orders.

Detailed Analysis:

1. Limitation Period for Filing the Review Application
The office pointed out a delay of 11 months and 14 days in filing the review application. The petitioner provided an explanation under section 5 of the Limitation Act, which was accepted, and the delay was condoned.

2. Maintainability of the Review Petition Against the Appellate Order Under Section 260A of the Income-tax Act
The petitioner sought a review of a Division Bench judgment dated April 16, 2008. The Division Bench had dismissed the miscellaneous appeal and writ petition on merits. The petitioner had previously filed Special Leave to Appeal (Civil) Nos. 13226-13227/2008, where the Supreme Court allowed the petitioner to move the High Court for review/clarification based on new documents. However, the Division Bench reiterated that there was no provision for review under the Income-tax Act, which is a self-contained code. The review petition was dismissed as not maintainable, emphasizing that the Act does not provide for review of appellate orders passed under section 260A.

3. Merger of High Court and Supreme Court Orders
The petitioner argued that no merger occurred between the High Court's order and the Supreme Court's order until the leave stage was crossed, citing Kunhayammed v. State of Kerala. The Supreme Court had clarified that there would be no merger unless special leave to appeal was granted and the matter considered under appellate jurisdiction. However, the principle of res judicata would apply if the special leave petition was dismissed with reasons. The High Court held that the general principle of law regarding merger did not affect the proposition that the Income-tax Act does not provide for review of appellate orders.

4. Inherent Powers of the High Court to Review Its Own Orders
The petitioner contended that the High Court should use its inherent powers to correct apparent mistakes. The High Court acknowledged that while it has inherent powers to correct clerical or similar mistakes, it would not be appropriate to exercise these powers to review the merits of a case once again. The court concluded that exercising jurisdiction of review under the guise of inherent powers was not permissible when the Income-tax Act does not provide for such review.

Conclusion:
The High Court dismissed the review petition as not maintainable, reiterating that the Income-tax Act is a self-contained code that does not provide for the review of appellate orders passed under section 260A. The court also emphasized that inherent powers should not be used to circumvent the absence of a statutory provision for review. The decisions in Bihar Rajya Sahakari Bhumi Vikas Bank Simitee, Bibhay Kumar Sah, J. B. Associates P. Ltd., and Bengali Singh (HUF) were overruled, and the matter was referred to an appropriate Division Bench for further proceedings.

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