2013 (3) TMI 74 - HC - Income Tax

Review application - as per the assessee the observations made in the last but one paragraph of the judgment are beyond the subject matter of dispute before the Court and the same ought to be recalled - Held that - The question of law referred to had already been answered by this Court in favour of the assessee and against the Revenue. Whether the observations made in the judgment were required or not can be made the subject matter of appeal. The nature of jurisdiction of this Court in disposing of a Reference is an advisory jurisdiction which entitles the Court to exercise only those powers which has been conferred by the Act. Therefore, the High Court under Section 151 Code of Civil Procedure, 1908 cannot correct the said mistake for which the remedy lies in filing an appeal. As decided in CIT vs Radha Swami Satsang (1986 (9) TMI 25 - ALLAHABAD HIGH COURT) if the grant of an application results in reviewing the judgment, then it is not within the scope of Section 151 of the Code of Civil Procedure, 1908 and in advisory jurisdiction under Section 256 of the Act, the Court has no inherent power to review. The present application in effect seeks reviewing of our order dated 12.10.2006, therefore, it is not maintainable.

Summary

Issues:
1. Clarification/recall/modification of judgment dated 12.10.2006.
2. Questions of law referred by Income Tax Appellate Tribunal.
3. Observations made in the judgment beyond the subject matter of dispute.
4. Jurisdiction of the High Court in disposing of a Reference.

Analysis:

1. The application sought clarification/recall/modification of the judgment dated 12.10.2006 on the grounds that certain observations made in the judgment were considered beyond the subject matter of dispute before the Court. The Court had answered questions of law referred by the Income Tax Appellate Tribunal in favor of the assessee and against the Revenue. The observations in question were challenged by the applicant as unnecessary and were requested to be recalled.

2. The questions of law referred by the Income Tax Appellate Tribunal under Section 256(1) of the Income-tax Act, 1961 were related to the validity of reopening assessments under Section 147(a) for non-disclosure of material facts. The Tribunal's decision was in favor of the assessee, stating that the pendency of proceedings for enhancement of compensation for land acquisition was not required to be disclosed in the assessment proceedings. The Court upheld the Tribunal's decision, emphasizing the validity of the proceedings initiated under Section 147 based on the information provided by the Avas Tribunal.

3. The Court acknowledged that while answering a Reference, it should confine itself to the questions referred and not travel beyond them. However, in this case, the questions had already been answered in favor of the assessee. The nature of the High Court's jurisdiction in disposing of a Reference was clarified as advisory, limiting the Court's powers to those conferred by the Act. The Court highlighted that any dispute regarding the necessity of the observations made in the judgment could be a subject matter of appeal rather than a modification request.

4. The High Court concluded that the application seeking clarification/recall/modification effectively aimed at reviewing the previous order dated 12.10.2006, making it not maintainable. Citing precedents, the Court emphasized that the remedy for correcting any perceived mistake in the judgment lay in filing an appeal rather than seeking a review through the current application. Consequently, the application was dismissed by the Court.