2024 (9) TMI 1064 - HC - Income Tax

Review petition - Validity of reopening of assessment u/s Section 148 on the ground being without jurisdiction - error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC - HELD THAT - In the the present case, no final order has been passed. Moreover, the issue of jurisdiction has also been raised for the first time in the review petition. It is a settled legal proposition that wherever statutory remedy is available the High Courts could not normally interfere in the writ jurisdiction under Article 226 or supervisory jurisdiction of the Constitution of India. As such, no apparent error on the face of record is made out so as to interfere with the order passed in the writ petition. Accordingly, the present review petition is liable to be dismissed. Under the garb of filing a review petition, a party cannot be permitted to repeat old and overruled arguments for reopening the conclusions arrived at in a judgment. The power of review is not to be confused with the appellate power which enables the Superior Court to correct errors committed by a subordinate Court In our considered opinion, none of the grounds available for successfully seeking review as recognized by Order 47 Rule 1 CPC are made out in the present case. The Apex Court in the case of S. Bhagirathi Amaal Vs. Palani Roman 2007 (12) TMI 456 - SUPREME COURT has held that in order to seek review, it has to be demonstrated that the order suffers from an error contemplated under Order 47 Rule 1 CPC which is apparent on the face of record and not an error which is to be fished out and searched. A decision or order cannot be reviewed merely because it is erroneous. Thus no error apparent on the face of record warranting interference in the order impugned.

Summary

Issues Involved:
1. Application for condonation of delay.
2. Review petition under Order 47 Rule 1 read with Sections 114 and 151 of CPC.
3. Challenge to the reopening of assessment under Section 148 of the Income Tax Act.
4. Jurisdictional challenge in the review petition.
5. Grounds for review under Order 47 Rule 1 CPC.

Detailed Analysis:

1. Application for Condonation of Delay:
The court addressed I.A. No.5724/2024, an application for condonation of delay, and allowed it, condoning the delay of 79 days in filing the review petition.

2. Review Petition under Order 47 Rule 1 read with Sections 114 and 151 of CPC:
The review petition sought to review the order dated 29.11.2023, which dismissed the writ petition challenging the reopening of assessment under Section 148 of the Income Tax Act. The court examined the grounds for review under Order 47 Rule 1 CPC, which include discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason.

3. Challenge to the Reopening of Assessment under Section 148 of the Income Tax Act:
The petitioner challenged the notice for reopening the assessment for the Assessment Year 2015-2016, claiming it was illegal, without jurisdiction, arbitrary, and in violation of the principles of natural justice. The court had previously dismissed the writ petition, stating that the veracity and genuineness of the material forming the opinion of the Assessing Officer could not be examined under writ jurisdiction.

4. Jurisdictional Challenge in the Review Petition:
The petitioner raised the issue of jurisdiction for the first time in the review petition, arguing that the notice under Section 148 was based on the valuation report of the District Valuation Officer, which could not be a basis for reopening. The respondent contended that the issue of jurisdiction was not raised in the original writ petition and that the High Courts should not interfere in writ jurisdiction when statutory remedies are available.

5. Grounds for Review under Order 47 Rule 1 CPC:
The court reiterated that a review application is maintainable on grounds such as discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason. The court cited several precedents emphasizing that review is not an appeal in disguise and cannot be used to reargue the case or correct mere errors. The error must be apparent on the face of the record, not requiring detailed examination or reasoning.

The court concluded that none of the grounds for review under Order 47 Rule 1 CPC were made out in the present case. The review petition was dismissed, as there was no error apparent on the face of the record warranting interference in the impugned order. The court emphasized that a party cannot be permitted to argue de novo in the guise of review, and the review petition was dismissed accordingly.