9911796707
TMI Blog2007 (5) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... ing receipt of the petitioner during the financial year in question. Thereafter, the Assessing Officer held that as the amount in question was not deposited, the petitioner would not be entitled to the benefit of deduction of the said amount under Section 43 B of the Income Tax Act (hereinafter referred to as the Act). Accordingly, the amount in question was included in the income of the petitioner. The petitioner filed an appeal before the Commissioner of Income Tax (Appeals) contending that it had not claimed deduction of the amount in question under Section 43 B of the Act. The Commissioner of Income Tax (Appeals) upheld the claim of the petitioner and ordered for deletion of the amount of ₹ 53,82,059/-. Aggrieved, the Revenue filed a further appeal to the Appellate Tribunal. The learned Tribunal by its order dated 25.9.2000 took the view that the Assessing Officer had not made the addition by disallowing the Central Sales Tax collected under Section 43B of the Act but that the addition in question was made by treating the amount in question as a part of the trading receipt of the asses-see for the relevant assessment year. Accordingly, the order of the Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not claimed any deduction under Section 43B of the Act, the said provision of the Act could not have been invoked by the Assessing Officer to add the amount of unpaid sales tax to the taxable income of the assessee. It was further held that the question before the Court was with regard to the applicability of Section 43 B and not whether sales tax collected but not paid formed a part of the business or trading receipt. Accordingly, this Court held that "what would be the effect of showing such sum as payable by way of tax on the liabilities side in the balance-sheet without actually paying the same is a different question", which question was not before the Court. Dr. Saraf has further submitted that the aforesaid order of this Court which has since been (India Carbon Ltd. v. Inspecting Assistant Commissioner of Income Tax) was appealed against by the Revenue before the Apex Court. However, by an order dated 23.8.1990 special leave to appeal was declined by the Apex Court. Dr. Saraf has further submitted that for a subsequent assessment year, i.e., 1989-90 in respect of a similar view of the Assessing Officer, as in the present case, the very same question was answered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Section 260A of the Act. Referring to a decision of the Apex Court in the case of Patel Narshi Thakershi and Ors. v. Pradyumansinghji Arjunsinghji as well as two others decisions of the Apex Court in the case of Indian National Congress (I) v. Institute of Social Welfare and Ors. and Lily Thomas and Ors. v. Union of India and Ors. , Sri Bhuyan has submitted that the power of review of an order passed under the Act has to be specifically conferred, in the absence of which it must be understood that the said power will not be available. Sri Bhuyan has, however, conceded that this Court after passing an order under Section 260A of the Act will not become functus officio and there will always be an inherent power in the Court to make corrections in the order passed even in the absence of an expressed conferment of such inherent power. Yet, according to Sri Bhuyan, the exercise of such inherent power of the Court must not be equated with the power of review. 7. In reply, Dr. Saraf, learned senior counsel for the review petitioner has submitted that while it is correct that no power of review has been conferred on this Court by the provisions of the Act to review orders passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eserve power and not a matter of expressed conferment. Inherent power has also been understood to be in the nature of a power to do ex debi to justitiae. The Court, while exercising its inherent power, naturally, cannot extend the same to cover other areas of corrective jurisdiction e.g. appeal, revision, review etc. Inherent power which this Court or for that matter any other Court possesses also cannot be exercised to correct mere apparent errors as that would amount to exercise of the review jurisdiction. It is, therefore, a power more circumscribed than the review power. An order, in addition to being apparently erroneous must also be contrary to some fundamental principle of law or jurisprudential value in order to be amenable to correction in exercise of the inherent power. Likewise, an order passed in inadvertent departure from a core judicial procedure would also be amendable to a similar correction. Failure of justice cannot be the sole touchtone for its exercise because every judicial order is capable of being so perceived by an aggrieved party. An exhaustive determination of the situations where resort to inherent power will be permissible is neither possible nor desirab ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
