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1998 DIGILAW 417 (RAJ)

Kailash Talkies v. State of Rajasthan

1998-03-25

AMARESH KUMAR SINGH, V.S.KOKJE

body1998
JUDGMENT 1. Heard the learned counsel for the petitioner and the learned counsel for Caveator. 2. By this review petition filed under Order 47, Rule 1, C.P.C. read with Article 226 of the Constitution of the India the petitioner M/s. Kailash Talkies has sought the review of the judgment dated 12th August, 97 passed by a Division Bench of this Court in D.B. Civil Special Appeal No. 597/95 whereby the appeal was dismissed and the judgment passed by the learned single Bench in S.B. Civil Writ Petition No. 6684/92 M/S Kailash Talkies v. State of Rajasthan was maintained. 3. The petitioner is the owner Kailash Talkies situated in Kapasan, District Chittorgarh. On 30th August, 88 at 7.45 p.m. when the film "Parwana" was being executed, an inspection was made by the Commercial Taxes Officer in presence of Jagdish Prasad Borgama, brother of one of the partners. It was found that the spectators were not issued tickets from the authenticated ticket books. The tickets which had been issued to them were issued from the ticket books which were issued for the period which ended on 31st December, 87. The petitioner's explanation for not issuing tickets from the ticket books authenticated by Tax Department was that the ticket books were placed under lock and key and the key was with the one of the partners, who was out of the station. It was also represented by the petitioner that new ticket books had not been printed after the revision of the rates. The explanation submitted by the petitioner was not accepted by the Assessing Authority. The Assessing Authority framed best judgment assessment for five months from April, 88 to August, 88 and created demand of entertainment tax, interest and penalty thereon by separate assessment orders for April, 88 to August, 88. Being aggrieved by the aforesaid order of assessment passed by the Assessing Authority, the petitioner preferred an appeal before the Dy. Commissioner (Appeals), Commercial Taxes Department, Udaipur. The Dy. Commissioner (Appeals) allowed the appeal partly holding that there was no evasion of tax. A revision was filed before the Commercial Taxes Officer, Chittorgarh under Rule 29 of the Rules framed under Act No. 24 of 1957. The Commercial Taxes Officer, Chittorgarh reversed the findings of Dy. Commissioner (Appeals). He gave a categorical finding to the effect that the order of the Appellate Authority (Annex. 6) passed by Dy. A revision was filed before the Commercial Taxes Officer, Chittorgarh under Rule 29 of the Rules framed under Act No. 24 of 1957. The Commercial Taxes Officer, Chittorgarh reversed the findings of Dy. Commissioner (Appeals). He gave a categorical finding to the effect that the order of the Appellate Authority (Annex. 6) passed by Dy. Commissioner (Appeals) was erroneous and not justified. 4. Being aggrieved by the order passed by the Revisional Authority, the petitioner filed the writ petition No. 6684/92 in this Court. The writ petition was dismissed by the learned single Judge vide judgment dated 6th February, 95. A D.B. Civil Special Appeal No. 597/95 was preferred by the petitioner against the judgment passed by the learned single Judge. 5. In D.B. Civil Special Appeal No. 597/ 95, a Division Bench after taking into consideration all the relevant facts and circumstances of the case, dismissed the appeal. It is not necessary to renarrate the reasons given by the Division Bench in its judgment dated August 12, 97 for dismissing the special appeal. 6. The petitioner has filed this review petition against the judgment dated 12th August, 97 passed by the Division Bench. A bare perusal of the review petition shows that it runs in 9 type pages and the grounds for review are to be found on page Nos. 2 to 9. The sum and substance of the grounds for this review petition is that the finding arrived at by the Division Bench is erroneous. We are afraid in view of the facts and circumstances of the case, this revision petition is not maintainable, because there is no error apparent on such face of the record. The law relating to such petitions for review is well settled. 7. In Thungabhadra Industries Ltd. v. Govt, of A. P. (SCR at p. 186) : (1964) 5 SCR 174 , the Hon'ble Supreme Court has observed:- What, however, we are now concerned with is whether the statement in the order of September, 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record", for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A revision is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error'. In Meera Bhanja v. Nirmala Kumar Choudhary, (1995) 1 SCC 170 , the Hon'ble Supreme Court again held that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of order 47 Rule 1, C.PC. 8. In Parison Devi v. Sumitri Devi, (1997) 8 SCC 715 , the Hon'ble Supreme Court has observed : "Under Order 47 Rule 1, CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47 Rule 1, CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is revision petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise". 9. In view of the law laid down by the Hon'ble Supreme Court, this petition purporting to be a petition under Order 47 Rule 1, CPC and under Article 226 of the Constitution is not maintainable.For the reasons mentioned above, the petition is rejected.Petition dismissed. *******