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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 ..... ths and 14 days. Considering the explanation in the applicationunder section 5 of the Limitation Act, the delay is condoned. 3. The other objection raised by the office is with respect to maintainabilityof this review petition against the judgment and order of a Division Benchof this court dated April 16, 2008 whereby Miscellaneous Appeal No. 76 of2007 as well as writ petition bearing C. W. J. C. No. 497 of 2008 were dis-missed on the merits. It may be noticed here that the miscellaneous appealas well as the writ petition, both preferred by the petitioner, were directed against the same judgment of the Income-tax Appellate Tribunal andtherefore after holding that the miscellaneous appeal had no merits, thewrit petition was dismissed for the same very reason. 4. The records show that against the order for which review is sought thepetitioner preferred Special Leave to Appeal (Civil) Nos. 13226-13227/2008. During hearing of the said appeal on November 17, 2008 an orderwas passed in the following terms : 'Upon hearing counsel the court made the following order : 5. In this case, one of the grounds on which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the merits. 10. Learned senior counsel appearing for the Income-tax Department onthe other hand, produced before us copies of order passed by two DivisionBenches of this court dated July 29, 2009 and December 16, 2009 wherebyReview Petition No. 249 of 2008 together with Civil Review No. 250 of2008 and Civil Review No. 55 of 2008 were dismissed after noticing theobjection raised by the Income-tax Department that there is no provisionfor review of the appellate order of this court. The aforesaid orders showthat the Department had raised an objection by submitting that the orderunder review was passed in a miscellaneous appeal preferred under section260A of the Income-tax Act against which only an appeal can be preferredbefore the apex court under section 261 of the Income-tax Act as there isno provision of review in the Act. It was also contended that the order ofthe apex court dated November 17, 2008 when read with the final orderdated March 23, 2009 amounts to dismissal of SLP by a reasoned orderwhich creates a bar of res judicata for these review petitions. 11. The aforesaid Supreme Court judgment in the case of Kunhayammed[2000] 245 ITR 360 ; [2000] 6 SCC 359 is an authority on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain decisions, namely, Bihar Rajya Sahakari Bhumi Vikas Bank Simitee v. CIT (Civil Review Nos. 249-250 of 2008) decided on July 29, 2009, along with Bihar Rajya Sahakari Bhumi Vikas Bank Simitee v. CIT (Civil Review No. 250 of 2008), and Bib-hay Kumar Sah v. ITO (Civil Review No. 55 of 2008) decided on December 16, 2009, J. B. Associates P. Ltd. v. CIT (Civil Review No. 214 of 2008), decided on March 31, 2010 and Bengali Singh (HUF) v. CIT [2010] 325 ITR 350 (Patna) decided on April 8, 2010, holding that an application for review is not maintainable when the appeal is disposed of under section 260A of the Act, thought it condign to refer the matter to a larger Bench to consider the issue whether an application for review can be entertained when an appeal has been disposed of under section 260A of the Act. Thus, the matter has been placed before us. The proposition being purely legal it is not requisite to state the facts in detail except stating that a judgment was pronounced by a Division Bench on March 5, 2009 in Miscellaneous Appeal No. 214 of 2002 which was pre-ferred under section 260A of the Act. The assessee after losing in appeal preferred an application for revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection raised by the Income-tax Department that there is no provision for review of the appellate order of this court. The aforesaid orders show that the Department had raised an objection by submitting that the order under review was passed in a miscellaneous appeal preferred under section 260A of the Income-tax Act against which only an appeal can be preferred before the apex court under section 261 of the Income-tax Act as there is no provision of review in the Act. It was also contended that the order of the apex court dated November 17, 2008, when read with the final order dated March 23, 2009, amounts to dismissal of SLP by a reasoned order which creates a bar of res judicata for these review petitions. 8. The aforesaid Supreme Court judgment in the case of Kun-hayammed [2000] 245 ITR 360 ; [2000] 6 SCC 359 is an authority on the issue as to whether a judgment and order of the High Court or any tribunal would merge with the order of the Supreme Court in case prayer for grant of special leave to appeal is rejected. The Supreme Court has answered in clear terms that there will be no merger in either case, whether the order of dismissal of the special leave to appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the petitioner sub-mitted that the orders passed in the aforesaid decisions are neither in accord with nor in consonance with the law in the field. He has com-mended us to the decision rendered in Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1. The learned senior counsel has specially drawn inspiration from paragraphs 52, 53, 60 and 62. Though the said judgment was rendered in a different context, yet the proponement of Mr.Giri is that superior courts stand on a different pedestal and their powers cannot be curbed or constricted. In paragraph 60 of the said deci-sion, their Lordships have stated thus : "60. There is yet another aspect of this matter to which it is necessary to refer. The High Court is a superior court of record and under article 215 shall have all powers of such a court of record includ-ing the power to punish contempt of itself. One distinguishing characteristic of such superior courts is that they are entitled to con-sider questions of their jurisdiction raised before them. This question fell to be considered by this court in Special Reference No. 1 of 1964, [1965] 1 SCR 413 at page 499. In that case, it was urged before this court that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings that the particular matter is within the cognizance of the particular court.' 67. The observation of this court in Raja Soap Factory v. S. P. Shantharaj, AIR 1965 SC 1449, that section 151 of the Code of Civil Procedure did not confer on the High Court jurisdiction which was not specifically vested was made in the context of section 105 of the Trade and Merchandise Marks Act (43 of 1958) which conferred a specific jurisdiction in respect of a passing off action. That observation is not relevant to the question regarding the inherent and plenary jurisdiction of the High Court as a superior court of record. The Andhra Pradesh High Court, as a successor to the Madras High Court, is vested with all the appellate and original jurisdiction, including admiralty jurisdiction to order the arrest and detention of a ship. 68. In decisions such as Jayaswal Shipping Co. v. S. S. Leelavati, AIR 1954 Cal 415, Kamalakar Mahadev Bhagat v. Scindia Steam Navigation Co. Ltd., Bombay, AIR 1961 Bom 186, Rungta Sons Pri-vate Ltd. v. S. S. Edison Mariner [1961-62] 66 CWN 1083, National Co. Ltd. v. Asia Mariner [1968] 72 CWN 635, Sahida Ismail v. Petko R. Salvejko ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail of the same. We are of the view that the Legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision . . . 35. It was contended before us that the words `expressly excluded' would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examina-tion of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned senior counsel has commended us to the observation that has been referred to by the apex court in the case of Hongo India (P) Ltd. [2009] 5 SCC 791, 800 ; [2009] 315 ITR 449, 457 (SC) in paragraphs 28 and 29. It is urged by him that the certain citations were distinguished by their Lordships as their Lordships were dealing with the facet of applicability of section 5 to a reference under the Central Excise Act, but their Lordships have stated in categorical terms that the High Court has all powers in order to correct errors apparent on the face of record and it has power of review. Their Lordships have accepted the proposition but the same was not given acceptation regard being had to the scheme of the Act in the context of condonation of delay. Regard being had to the issue involved we think it apposite to reproduce paragraphs 28 and 29 of the said decision : "28. The other decision relied on is M. M. Thomas v. State of Kerala [2000] 1 SCC 666. This case arose out of the vesting of all pri-vate forests in the State of Kerala on the appointed day (10-5-1971) under the Kerala Private Forests (Vesting and Assignment) Act, 1971. It is true that in para 14 it was held that : ..... 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