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TMI Blog2002 (9) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee herein is as to whether although this court, has answered the reference ex parte, it can recall the same. In view of the question involved in this application, it is not necessary for this court to delve deep into the factual matrix of the matter. Suffice it to say that at the instance of the assessee, the following question had been referred for opinion of this court by the Income-tax Appellate Tribunal: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the expenditure of Rs. 19.89 lakhs was a capital expenditure as it gave the assessee an advantage of enduring nature?" On the day when the matter was taken up, learned counsel for the assessee was not present. A Bench of this court of which one of us (D.K. Jain J.) was a member, by an order dated October 15, 2001 (International Airports Authority of India v. CIT [2002] 254 ITR 657 Delhi)) answered the said question in the affirmative, i.e., in favour of the Revenue and against the assessee. An application has since been filed by the assessee alleging, inter alia, therein that after September 27, 2001, when the matter was fixed for hearing, it was not shown in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to be conferred by the statute. No such power is required to be expressly conferred upon a court in relation to exercise of its power of procedural review. Such a power inheres in every court, more so in the High Court. In J.N. Sahni v. ITAT [2002] 257 ITR 16 this court referred to the decision in CIT v. K.L. Bhatia [1990] 182 ITR 361, 367 (Delhi), wherein Kirpal J., as his Lordship then was, held: "As we have already observed, the Tribunal is a creation of the statute. It is an admitted case, and it is now well-settled, that though the Tribunal has no inherent power of reviewing its order on merits, the Tribunal has incidental or ancillary powers which can be exercised by it. But such power cannot be invoked to rehear a case on merits." It was further observed: "The Tribunal in the absence of any express power cannot be said to have a power of substantive review. The Tribunal has merely the power to amend its order. While exercising the said power it cannot recall its order. The expression 'amendment' must be assigned its true meaning. While an order of amendment is passed, the order remains but when an order is recalled it stands obliterated. It is well-settled that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt being a constitutional court and thus having the plenary jurisdiction, can frame its own rules, there cannot be any doubt whatsoever that it can regulate its own procedure. The High Court is not only a court of law but also a court of justice. It is beyond any cavil of doubt that the High Court ex debito justitiae can pass such orders as in its opinion, will render complete justice between the parties. No rule has been prescribed by the High Court in terms whereof the procedure is to be followed in a reference under section 256. In the aforementioned situation, the court can regulate its own procedure as it may deem fit and proper for doing complete justice between the parties. In this view of the matter, the High Court can follow the procedure analogous to that laid down in the Code of Civil Procedure. In K.T.M.S. Mohammad v. CIT [1997] 228 ITR 121, a Division Bench of the Madras High Court went into the merits of the matter to arrive at a finding as to whether a sufficient cause has been made out to recall the order or not. It held that the Limitation Act would not be applicable to a case filed before this court under section 256 of the Act. It referred to the notice presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt should not be loath to exercise the inherent power of recalling an earlier order provided that the party concerned approaches the court with due diligence and shows sufficient cause for its non-appearance on the date of hearing." It will not be correct to contend, as has been sought to be done by Mr. Khanna, that as the Division Bench of the Madras High Court distinguished the case and held that the court will have the power to recall when the reference has not been answered. Such a distinction, in our opinion, does not exist. Having regard to the said decisions, the court will become functus officio even if the reference is returned unanswered. In Dr. Kashinath G. Jalmi v. The Speaker [1993] 3 JT 594 SC; AIR 1993 SC 1873, the apex court was dealing with the power of substantive review by the Speaker of the Assembly in terms of Schedule X to the Constitution of India wherein it has merely been held that in the absence of any express power of review, the Speaker cannot exercise the said power. The said decision cannot be said to have any application whatsoever inasmuch as the Speaker is a creature of a statute. In Budhia Swain v. Gopinath Deb [1999] 4 SCC 396 whereupon stro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party, or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented." In A.R. Antuley v. R.S. Nayak, AIR 1988 SC 1531, the apex court clearly and in unequivocal terms applied the maxim actus curiae neminem gravabit in the following words: "When these factors are brought to the notice of this court, even if there are any technicalities, this court should not feel shackled and decline to rectify that injustice or otherwise, the injustice noticed will remain forever a blot on justice ..." Ranganath Misra J., (as his Lordship then was) observed: "If a mistake is detected and the apex court is not able to correct it with a view to doing justice for fear of being misunderstood, the cause of justice is bound to suffer and for the apex court the apprehension would not be a valid consideration. Today it is Abdul Rehaman Antulay with a political background and perhaps some status and wealth but tomorrow it can be any ill-placed citizen. This court, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1961, on the ground that the order made was palpably erroneous or has resulted in miscarriage of justice and set aside the order if it is found to be so and to pass a fresh order in accordance with law." However, we may add that we have reservations about certain observations made therein. In CIT v. Bhagirath Bros. [1997] 225 ITR 483, the Madhya Pradesh High Court held that the court has an inherent power to restore the application. The question as to whether even a statutory tribunal has an inherent power or not is no longer res integra having regard to the decision of the apex court in Special Reference No. 1 of 1991 in the matter of Cauvery Water Disputes Tribunal, In re, AIR 1992 SC 522, in the following words: "27 ... The limited question we are required to answer is whether the order granting interim relief is a report and a decision within the meaning of section 5(2) and is required to be published in the Official Gazette under section 6 of the Act. It is needless to observe in this connection that the scope of the investigation that a Tribunal or a court makes at the stage of passing an interim order is limited compared to that made before making the final adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maxim is applicable precisely when the court is concerned not with a case of actual injustice but with the appearance of injustice, or possible injustice. In Altco Ltd. v. Sutherland [1971] 2 Lloyd's Rep. 515 Donaldson J. said that the court, in deciding whether to interfere where an arbitrator had not given a party a full hearing, was not concerned with whether a further hearing would produce a different or the same result. It was important that the parties should not only be given justice, but, as reasonable men, know that they had had justice or to use the time hallowed phrase 'that justice should not only be done but be seen to be done'. In R v. Thames Magistrates' Court Ex p. Polemis [1974] 1 WLR 1371, the applicant obtained an order of certiorari to quash his conviction by a stipendiary magistrate on the ground that he had not had sufficient time to prepare his defence. The Division Court rejected the argument that in its discretion, it ought to refuse relief because the applicant had no defence to the charge. 'It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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