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TMI Blog2003 (5) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... before he could submit his written submissions, those decisions were not considered, and further the court had assured that there would be further hearing before the delivery of the judgment but that was not adhered to. The second question he raised is that the court did not take into consideration the law as it stood on June 12, 2000, in respect of the interpretation of section 179 of the Income-tax Act, 1961, as was amended with effect from October 1, 1975. The court had relied on the decision passed by the Kerala High Court, which, according to him, was not applicable. It did not consider the decision of the Bombay High Court in Union of India v. Manik Dattatreya Lotlikar [1988] 172 ITR 1 holding the field. Therefore, the judgment is per incuriam, which is a mistake apparent on record. The third question that he has raised is that the company went into liquidation even before the husband of the petitioner ceased to be the director of the company. Therefore, on the facts the court had committed a mistake apparent from the record. We have gone through the decision sought to be reviewed, namely, the decision in F.M.A. No. 484 of 2000 (F.M.A.T. No. 3124 of 1992) disposed of on Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The order by the Assessing Officer or the Commissioner could not run contrary to the said finding. It further appears that the Division Bench in its order dated June 12, 2000, had noticed the decision in Manik Dattatreya Lotlikar's case [1988] 172 ITR 1 (Bom) as well as the decision by the Kerala High Court in Ratanlall Murarka v. ITO [1981] 130 ITR 797. While dealing with those decisions, it had held that the Kerala High Court was not dealing with the question of retrospectivity of the amendment of section 179 and, therefore, it had no manner of application. Whereas about the Bombay High Court decision in Manik Dattatreya Lotlikar's case [1988] 172 ITR 1 it was held to be inapplicable in the present facts and circumstances of the case. In as much as the Division Bench in the decision dated June 12, 2000, had held that this question was concluded between the parties by the decision dated February 17, 1986, in C.O. No. 154(W) of 1985 remanding the case to the Assessing Officer. The scope of remand was limited to the extent of finding as to whether the company had gone into liquidation on the basis of the determination by the court in the order dated February 17, 1986, that the husba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. A review of an order passed by this court in writ jurisdiction is not subject to section 154 or 254 of the Income-tax Act. At the same time, section 141 of the Code of Civil procedure ("the CPC"), excludes its application to writ proceedings. Whereas the Appellate Side Rules (the AS Rules) for article 226 of the Constitution in rule 53 provides that save and except as provided in the Appellate Side Rules and subject thereto the procedure provided in the Code of Civil Procedure in regard to suits shall be followed, as far as it can be made applicable, in all proceedings for issue of a writ. The Appellate Side Rules do not provide for any procedure for review. Therefore, as far as it can be made applicable, the provisions of the Code of Civil Procedure would apply in principle to a proceeding for review in connection with writ proceedings. The principles enunciated under the Code of Civil Procedure in section 114 read with Order 47 speak of error apparent on the face of the record. Order 47 envisages discovery of new and important matter of evidence, which after exercise of due diligence was either not within the knowledge of the applicant or could not be produced by him at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and exclude the evidence and other parts of the record (Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526). The mistake or error is not confined to the judgment itself, but on any document constituting the records. Error apparent on the face of the record is an error, which can be seen by a mere perusal of the record without reference to any other matter. We had occasion to deal with such question in A.P.O.T. No. 735 of 2002 (Vijay Mallya v. Asst. CIT [2003] 263 ITR 41 (Cal)), disposed of on May 12, 2003. The mistake must be patent and self-evident in respect of which there cannot be two different views. In this case, having regard to the decision, it is not possible to describe the same that it has been decided in ignorance of the settled principle of law and that there is an error in law staring on the face. Even if the decision could be said to be erroneous, still then the same could not have been subjected to review. However, on the facts, we do not find the said decision to be an erroneous decision, not to speak of any error staring on the face to be construed to mean one apparent on the face of the record. We are of the view that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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