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TMI Blog2012 (4) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... ept open the objection of the Counsel appearing for the respondents-assessees that no review is maintainable, enabling Review of order passed by this Court in the Tax Appeal and sub section (7), of Section 260A of Income Tax Act, 1961 does not permit such a course. 4. Mr. Sonak appearing on behalf of the assessees in some of the matters submitted that the review is not maintainable and in that behalf, he invited our attention to a Division Bench Judgment of this Court in the case of Commissioner of Income Tax-1 v. M/s. The West Coast Paper Mills Ltd., reported in 2010(1) Mh. L. J. 759. In the submission of Mr. Sonak, this Judgment considers an identical provision and controversy. It has, in terms, held that sub-section (7) of Section 260A of the Income Tax Act, 1961 makes the procedure pertaining to an Appeal, as set out in the Code of Civil Procedure, 1908 applicable to appeals under Income Tax Act, 1961 and these provisions will not enable the Court to review its own order or exercise the power of review in terms of Section 114, read with Order XLVII, Rule (1) of C.P.C. as that is a distinct power. Relying upon this decision, Mr. Sonak submits that the power of review has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not the intent of the legislature when the powers of appeal are conferred by law on this Court. 8. Therefore, by relying upon a Judgment of another Division Bench of this Court, which according to her, deals with identical provisions of the Customs Act, 1962 (VIP Industries Ltd. v. The Commissioner of Central Excise) in Review Petition No.33 of 2010 in Notice of Motion No.2482/2008 in Central Excise Appeal No.136 of 2009 dated 16th December, 2010, she submits that the view taken by the Division Bench may not be by noticing the earlier view in the case of Commissioner of Income Tax-1 v. M/s. The West Coast Paper Mills Ltd. (supra), yet reference therein is to a Supreme Court Judgment, and, therefore, we must prefer this view in preference to the one taken in Commissioner of Income Tax-1 v. M/s. The West Coast Paper Mills Ltd. Additionally, she submits that Special Leave Petitions from the original orders passed in Tax Appeals were preferred and the Hon'ble the Supreme Court, while disposing them of, granted liberty to the Revenue/Department to move this Court by way of a review. In such circumstances, the review applications should not be dismissed on the ground of maintainabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which - (a) Has not been determined by the Appellate Tribunal : or (b) Has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1) (7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section." A perusal thereof would reveal that sub-section (7) enacts and states that save as otherwise provided in the Income-tax Act, the provisions of the Code of Civil Procedure, 1908 relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this Section. Further, when this provision is read in its entirety, it is apparent that such of the provisions in the Code of Civil Procedure which relate to appeals to the High Court, have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree or order from which an appeal is allowed, but from which no appeal has been preferred; (b) by a decree or order from which no appeal is allowed, or; (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review". 11. In this backdrop, when the Division Bench in Commissioner of Income Tax-1 v. M/s. The West Coast P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision under a different or distinct enactment or may be dealing with somewhat identical provision, a different view has been taken by this Court. That would mean that we are ignoring or brushing aside a judgment of coordinate Bench, although the same cannot be held as per incuriam. 13. In these circumstances, we are unable to accept the argument of Ms. Desai, appearing on behalf of the Revenue that the power of review must be read into sub-section (7) of Section 260A of the Income-tax Act, 1961. For the reasons that have been set out above and bearing in mind the binding decision of the Division Bench of this Court rendered in Commissioner of Income Tax-1 v. M/s. The West Coast Paper Mills Ltd. (supra), we are unable to subscribe to her view and her submissions. 14. Reliance by her upon the Judgment of Division Bench in VIP Industries Ltd. v. The Commissioner of Central Excise (supra), and the Full Bench Decision of Patna High Court, is rather misplaced. The view taken by the Full Bench of Patna High Court, speaking through the Hon'ble the Chief Justice Dipak Misra, as His Lordship then was, relying upon the same Judgment to which reference has been made and the same principle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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