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TMI Blog2010 (4) TMI 894X X X X Extracts X X X X X X X X Extracts X X X X ..... ar mistakes and not for going into the merits of the case once again. - 129 of 2008 - - - Dated:- 8-4-2010 - <!--[if gte mso 9]> Normal 0 false false false EN-US X-NONE X-NONE <![endif]--><!--[if gte mso 9]> <![endif]--><!--[if gte mso 10]> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein to movethe High Court by way of review/clarification pointing out the documentswhich are now annexed to the additional affidavit dated November 11,2008. Stand over for eight weeks. 7. In terms of that order the petitioner moved this court by way of review/clarification on the basis of documents which were placed before the apexcourt through an additional affidavit dated November 11, 2008. A DivisionBench of this court by order dated February 11, 2009 entertained Civil,Review No. 1 of 2009 in terms of direction of the apex court and gave itsfindings after considering the documents which had been referred by thepetitioner before the apex court. Even on considering those documents theDivision Bench held that there was no scope to entertain any challenge tothe merits of the findings which were pending sub-judice before theSupreme Court. Some other points were also sought to be raised in thecourse of hearing on that occasion but the Division Bench refrained fromgiving any hearing on those aspect of the matter. After clarification orreview was made as per direction of the apex court, the matter was againconsidered by the Supreme Court and the etition for special leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered under appellate jurisdiction. However, it has fur-ther been clarified that if the petition for special leave to appeal is dis-missed after recording reasons then there may not be a merger of the saidorder with the order of the subordinate court or tribunal but still the prin-ciple of law laid down by such order will be binding under article 141 of theConstitution of India and will bind the parties as res judicata. In such a casealso it will not be proper for the subordinate court or tribunal to exercisepower of review. 12. The aforesaid general principle of law regarding merger does not comein the way of the proposition advanced before us on behalf of the Income-tax Department. In the context of the Income-tax Act it has rightly been submitted that the Act is a code by itself and in the absence of any pro-vision for review against an appellate order passed under section 260A ofthe Act, no review can be exercised by the High Court. Hence, we are con-strained to hold that this review petition is not maintainable. 13. Lastly, onbehalf of the petitioner it was submitted that in appropriatecases, to correct apparent mistakes inherent power of the court is permis-sible to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgments cited and contrary to the views of the Supreme Court. On behalf of the respondents the aforesaid sub-mission has been refuted and it has been further submitted that the judgment was passed in a miscellaneous appeal preferred under sec-tion 260A of the Income-tax Act against which only an appeal can be preferred under section 261 before the apex court and there is no pro-vision of review of the appellate order in the Income-tax Act which is a code by itself." In Bibhay Kumar Sah (supra), another Division Bench in Civil Review No. 55 of 2008 placing reliance on the decision in Bihar Rajya Sahakari Bhumi Vikas Bank Simit (supra), has held as follows : "Our attention has been invited to a Division Bench order in Civil Review No. 249 of 2008 holding that the Income-tax being a code by itself only an appeal lies against the impugned order under section 261 of the Income-tax Act before the hon'ble apex court." In Bengali Singh (HUF) through Bengali Singh [2010] 325 ITR 350 (Patna), the division Bench has held thus : "7. Learned counsel for the petitioner has placed reliance upon a judgment of the Supreme Court in the case of Kunhayammed v. State of Kerala [2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down by such order will be binding under article 141 of the Constitution of India and will bind the parties as res judicata. In such a case also it will not be proper for the subordinate court or tribunal to exercise power of review. 9. The aforesaid general principle of law regarding merger does not come in the way of the proposition advanced before us on behalf of the Income-tax Department. In the context of the Income-tax Act it has rightly been submitted that the Act is a code by itself and in the absence of any provision for review against an appellate order passed under section 260A of the Act, no review can be exercised by the High Court. Hence, we are constrained to hold that this review petition is not maintainable. 10. Lastly, on behalf of the petitioner it was submitted that in appropriate cases, to correct apparent mistakes inherent power of the court is permissible to be used by the High Court and such inherent power may be invoked by this court to consider this review application. In our considered view, once review is not provided by the Income-tax Act, it would not be proper for us to exercise jurisdiction of review in the garb of exercise of inheren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That is why this court did not accede to the proposition that in passing the order for interim bail, the High Court can be said to have exceeded its jurisdiction with the result that the order in question was null and void. In support of this view, this court cited a passage from Halsbury's Laws of England where it is observed that : `Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court.' If the decision of a superior court on a question of its jurisdiction is erroneous, it can, of course, be corrected by appeal or revision as may be permissible under the law ; but until the adjudication by a superior court on such a point is set aside by adopting the appropriate course, it would not be open to be corrected by the exercise of the writ juris-diction of this court." In M. V. Elisabeth v. Harwan Investment and Trading Pvt. Ltd. [1993] Supp (2) SCC 433, in paragraphs 66, 67 and 68, their Lordships have op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on rendered in Com-missioner of Customs and Central Excise v. Hongo India (P) Ltd. [2009] 315 ITR 449, 459 (SC) ; [2009] 5 SCC 791, 801. Be it noted, Mr. Harsh-wardhan, learned standing counsel for the Revenue has placed heavy reli-ance on the same. It is his contention that in the said case, a three-judge Bench of the apex court expressed the view that the High Court had no jurisdiction to condone the delay while entertaining an application for reference preferred under section 35H(1) of the Central Excise Act. Be it noted, the matter travelled to the three-judge Bench as a doubt was expressed as regards the correctness of the decision rendered in Commis-sioner of Customs and Central Excise v. Punjab Fibres Ltd. [2008] 3 SCC 73. Their Lordships, after taking note of the language employed in sections 35B, 35EE, 35G and 35H of the Central Excise Act, have expressed the view as follows : "32. As pointed out earlier, the language used in sections 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and ref-erence to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not from the terms of the Limitation Act, but by the provisions of the Central Excise Act relating to filing of reference application to the High Court." It is worth noting, their Lordships analysed the anatomy of the provi-sions and came to hold that where the special law does not exclude the provision of sections 4 to 24 of the Limitation Act by an express reference, it would none the less be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law impliedly excludes their operation. Mr. Y. V. Giri, learned senior counsel appearing for the assessee-petitioner would contend that there is a sea of difference between the issue of condonation of delay and entertaining an application for review. It is urged by him that a period of limitation is determined under the statute and it bars the remedy. Elaborating the said submission, it is canvassed by him if a suit is barred under section 3 of the Limitation Act, the court has power to condone the delay subject to the exclusion of the period as engrafted under section 14 of the Limitation Act. It is proponed by him that a special st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self to keep all its records correctly and in accordance with law.' , the High Court has not only the power, but a duty to correct any apparent error in respect of any order passed by it. This is the plenary power of the High Court." "29. In para 17 of the abovementioned decision, it was held : (M.M. Thomas case, SCC page 673) ₹ 17. If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. There-fore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record.' There is no doubt that the High Court possess all powers in order to correct the errors apparent on the face of record. While accepting the above proposition, in the light of the scheme of the Act, we are of the view that the said decision is also not helpful to the stand taken by the appellant." In view of the aforesaid clear pronouncement of law, we have no scin-tilla of doubt that the High Court can entertain the application for review arising out of a judgment passed und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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