2018 (7) TMI 1728 - HC - Income Tax

Additional sum towards value of bitumen short supply - Maintainability of the review application - patent error apparent on record - Whether appellant s case confirmation of addition u/s 69A is legal and valid? - substantial question answered against the assessee - Held that - Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error apparent on record. Much emphasis was laid by learned counsel for the review petitioner that the appellate tribunal, in separate appeals filed by the review petitioner itself, however, for the different assessment years has taken a different view in both the appeals. It is stated that for the assessment year 1996-97, on the same set of facts, it has allowed the appeal on the same date, whereas, for the year 1995-96 it has remanded back the matter to the assessing officer. However, the question would be whether the fact that the appellate tribunal had passed another order correctly or incorrectly, the same may have any effect rendering the judgment of the tribunal passed in present matter to be erroneous despite the same having been upheld in appeal by this Court? Answer has to be in negative. For the assessment year 1995-96, matter has attained finality as the Division Bench has already accepted the view of the appellate tribunal to be correct in 2009 (3) TMI 501 - PATNA HIGH COURT . The view of the same Tribunal or the same Bench of the Tribunal was correct or incorrect for a different assessment year was not the subject matter of the appeal. If one of the views of the appellate tribunal is in favour of the assessee that does not mean that the said view would be correct and the view taken in the present case was incorrect. The view formed by the revenue in the present case for the assessment year 1995-96 has been scrutinized not only by the appellate tribunal but also by the Division Bench of this Court and the same has been found to be correct. Thus, in our view, that cannot be held to be a patent error on the face of the record, thus, the same would not come to the help of the review petitioner. We could not be persuaded to reverse the finding recorded by the Division Bench for the reason that for the same assessee but for the different assessment year, same Bench of tribunal has accepted their plea regarding short supply of bitumen as it is not within the knowledge as to whether that case travelled in appeal before this Court or not, whereas, the decision rendered by the appellate tribunal for the assessment year 1995-96 travelled up to this Court. The substantial questions were formulated and all of them have been answered against the assessee.

Summary

Issues:
1. Review application against judgment dismissing appeal.
2. Dispute over additional income due to bitumen short supply.
3. Applicability of Section 69A of the Income Tax Act.
4. Scope and ambit of review application under the Income Tax Act.
5. Consideration of different views by the appellate tribunal for separate assessment years.

Issue 1: Review application against judgment dismissing appeal
The review application challenged a Division Bench judgment dismissing the appeal filed by the review petitioner against the order of the Income Tax Appellate Tribunal. The Tribunal had reversed the order of the Commissioner (Appeals) regarding the additional income of &8377; 1,04,72,720.30 due to bitumen short supply by the assessee.

Issue 2: Dispute over additional income due to bitumen short supply
The dispute arose from the assessing officer's conclusion that the assessee owed a sum of &8377; 1,04,72,720.30 for bitumen short supplied to the Road Construction Department. The Tribunal found the delivery challans submitted by the assessee to be false and fabricated, leading to the addition of the said amount to the assessee's income under Section 69A of the Income Tax Act.

Issue 3: Applicability of Section 69A of the Income Tax Act
The Tribunal justified the addition under Section 69A based on discrepancies in the delivery of bitumen, as confirmed by Executive Engineers. The Tribunal's decision was challenged through substantial questions of law, which were answered in favor of the revenue and against the review petitioner.

Issue 4: Scope and ambit of review application under the Income Tax Act
The review application questioned the scope of review under the Income Tax Act. Citing precedents, the Court clarified that a review is not an appeal in disguise but is limited to correcting patent errors apparent on the record. The Court emphasized that the review cannot be equivalent to the jurisdiction exercised in an appeal.

Issue 5: Consideration of different views by the appellate tribunal for separate assessment years
The review petitioner highlighted that the appellate tribunal had taken different views for separate assessment years, allowing the appeal for one year and remanding the matter for another. However, the Court held that the correctness of the tribunal's decision for a different year does not impact the finality of the decision for the year in question. The Court upheld the Division Bench's finding, concluding that the review application lacked merit and was dismissed accordingly.