2009 (11) TMI 106 - HC - Income Tax

Appeal to HC whether power of review has been conferred under the provisions of the Income Act, 1961 - The settled law is that the power of review must be specifically conferred. There is distinction between substantive review and procedural review. Substantive review must be conferred whereas procedural review is inherent in every court or Tribunal - 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, the review petition along with the notice of motion dismissed.

Summary

Issues:
Delay in preferring the review petition, power of review under the Income-tax Act, applicability of Code of Civil Procedure provisions to appeals and reviews, distinction between substantive review and procedural review, necessity of specific conferment of power for review.

Delay in Preferring Review Petition:
The judgment addresses a delay of 36 days in preferring the review petition. An affidavit by an Assistant Commissioner of Income-tax is presented in support of the motion to explain the cause of delay.

Power of Review under the Income-tax Act:
The primary issue is whether the power of review has been conferred under the provisions of the Income-tax Act, 1961. Section 260A of the Income-tax Act is examined, which outlines the procedure for appeals to the High Court. The court analyzes the provisions of section 260A in detail to determine the scope of review under the Act.

Applicability of Code of Civil Procedure Provisions:
The argument is made that since the Code of Civil Procedure provisions are applicable to appeals under section 260A, the power of review, which is conferred by the Code of Civil Procedure, should also be applicable. The court delves into the distinct provisions in the Code of Civil Procedure related to appeals and reviews to ascertain the applicability of review procedures in income tax appeals.

Distinction Between Substantive and Procedural Review:
The judgment discusses the distinction between substantive review, which must be specifically conferred, and procedural review, which is inherent in every court or tribunal. Citing previous legal precedents, the court emphasizes that substantive review requires explicit conferment by statute, while procedural review is inherent to prevent abuse of the court's process.

Necessity of Specific Conferment of Power for Review:
Based on legal principles established by the Supreme Court and previous court decisions, the judgment concludes that since the power of substantive review is not explicitly conferred under the Income-tax Act, the review filed is deemed not maintainable. Consequently, the court dismisses the review petition along with the notice of motion.