2012 (11) TMI 764 - HC - Income Tax

Review petition - prayer to review the judgment 2011 (12) TMI 230 - ORISSA HIGH COURT - review regarding the decision on Legality of issuance of notice u/s 143(2) held that - There is nothing to show that Notice u/s 142(1) should precede notice under Section 143(2) as far as production of documents/accounts is concerned - Rearguing a point, while addressing on the review petition on the point already argued and decided by the Court in the judgment does not come within the scope and purview of review petition. Therefore, the judgment cannot be reviewed on the first ground of challenge. Second ground of challenge in the review petition - the petitioner has taken a new stand that the power of the Commissioner under Sec. 264 is very wide and it is not restricted to just supervise the order of the Assessing Officer. - held that - The above ground now urged in the review petition has neither been taken in the writ petition nor urged while argument was advanced in the writ petition out of which the present review petition arises. On this solitary ground the claim of the petitioner to review the impugned judgment is rejected. Otherwise also, the contention of the petitioner that the power of CIT (Appeals) under Section 264 is very wide and by exercising such revisional power the Commissioner can entertain even a new claim which was never urged before the Assessing Officer is not legally sustainable. - since there is no provision in the Income Tax Act authorising/enabling the assessee to file any revised statement of income, the Commissioner, who is the creature of the statute, by exercising revisional power under Section 264 cannot allow the petitioner-assessee to revise his income by way of filing a revised statement of income. It is settled proposition of law that what cannot be done per directum is not permissible to be done per obliquum , meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of quando aliquid prohibetur, prohibeture at omne per quod devenitur ad illud. The third ground taken by the review petitioner seeking review of the judgment is that the CIT (Appeals) is not justified to refuse to interfere with the assessment order on the ground that the petitioner preferred a petition under Section 264 of the Act. - held that - it is not open to the review petitioner to reargue the matter which had already been argued and decided by this Court in judgment under review. The matter can be looked at from different angle. - In the instant case the judgment passed in W.P.(c) No. 4554 of 2011 2011 (12) TMI 230 - ORISSA HIGH COURT out of which the present review petition has been filed was argued by Mr. B.K. Mohanti, Senior Advocate extensively. But the present review petition is argued by Mr. N.L. Das, who is only rearguing the points already argued, which is not permissible under law. - Such practice is deprecated by the Hon ble Supreme Court - Decided against the assessee.

Issues Involved:
1. Legality of issuance of notice under Section 143(2) prior to issuance of notice under Section 142(1).
2. Justification of CIT in declining to interfere with the assessment order under Section 264.
3. Whether an assessee can revise its return of income by filing a revised statement instead of a revised return under Section 139(5).
4. Applicability of the Supreme Court judgment in Goetze (India) Ltd. v. CIT to the present case.
5. Scope of CIT's powers under Section 264.
6. Maintainability of an appeal under Section 246-A after rejection of a petition under Section 264.
7. Grant of refund under Articles 226 and 227 of the Constitution when not flowing from a statutory order.

Detailed Analysis:

1. Legality of Issuance of Notice under Section 143(2) Prior to Issuance of Notice under Section 142(1):
The petitioner argued that the assessment proceeding was vitiated as the notice under Section 143(2) was issued before the notice under Section 142(1). The Court, referring to the relevant sections, held that there is no prescribed sequence for issuing these notices. The purpose of notices under Sections 142(1) and 143(2) is different, and there is no requirement that a notice under Section 142(1) must precede a notice under Section 143(2). The Court concluded that this argument does not warrant a review of the judgment.

2. Justification of CIT in Declining to Interfere with the Assessment Order under Section 264:
The petitioner contended that the CIT erred in not interfering with the assessment order and that the petitioner could not make a fresh claim of exemption without filing a revised return under Section 139(5). The Court had already addressed this in its original judgment, citing Section 139(5) and the Supreme Court's decision in Goetze (India) Ltd., which precludes revision of income through a revised statement instead of a revised return. The Court reiterated that accepting a revised statement would render Section 139(5) redundant.

3. Whether an Assessee Can Revise Its Return of Income by Filing a Revised Statement Instead of a Revised Return under Section 139(5):
The Court held that there is no provision in the Income Tax Act allowing an assessee to revise income through a revised statement. The proper procedure is to file a revised return under Section 139(5). The Court maintained that the assessment should be based on the original return filed under Section 139(1) if no revised return is filed.

4. Applicability of the Supreme Court Judgment in Goetze (India) Ltd. v. CIT to the Present Case:
The petitioner argued that the Supreme Court judgment in Goetze (India) Ltd. pertains to the powers of the Assessing Officer and not to the revisionary powers of the CIT under Section 264. The Court found this argument unpersuasive, noting that the principles established in Goetze (India) Ltd. regarding the necessity of filing a revised return apply broadly to the assessment process.

5. Scope of CIT's Powers under Section 264:
The petitioner claimed that the CIT's powers under Section 264 are broad and allow for the consideration of new grounds not raised before lower authorities. The Court dismissed this argument, stating that the CIT's powers are bound by statutory provisions and cannot extend to accepting a revised statement in place of a revised return. The Court emphasized that statutory procedures must be followed strictly.

6. Maintainability of an Appeal under Section 246-A after Rejection of a Petition under Section 264:
The Court had previously held that remedies under Sections 264 and 246-A are alternative, not cumulative. An assessee cannot pursue both remedies simultaneously or sequentially. The CIT (Appeals) was justified in rejecting the appeal on the grounds of non-maintainability after a petition under Section 264 was filed.

7. Grant of Refund under Articles 226 and 227 of the Constitution When Not Flowing from a Statutory Order:
The petitioner sought a refund through the Court's powers under Articles 226 and 227 of the Constitution. The Court held that refunds must flow from statutory orders and cannot be granted through constitutional provisions when not supported by the statute.

Conclusion:
The Court found that all grounds raised in the review petition had been thoroughly addressed in the original judgment. The petitioner was attempting to reargue points already decided, which is not permissible in a review petition. The Court emphasized that review is not an appeal in disguise and is limited to correcting errors apparent on the face of the record. The review petition was dismissed as it did not meet the criteria for review under Order XLVII, Rule 1 of the CPC.

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