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Madhya Pradesh High Court · body

2009 DIGILAW 1372 (MP)

Deepak Kumar Garg v. Commissioner of Income-tax

2009-12-14

S.K.SETH, VINEY MITTAL

body2009
JUDGMENT : Viney Mittal, J. 1. This order shall dispose of three review petitions being M. C. C. No. 349 of 2008, M. C. C. No. 350 of 2008 and M. C. C. No. 351 of 2008, as all the three review petitions have been filed by the assessee seeking review of the order passed by the Division Bench on May 11, 2007, in three appeals, the lead case being I. T. A. No. 47 of 2006 (CIT v. Deepak Kumar Garg (2008) 299 ITR 435 (MP)) 2. Three Income-tax Appeals being I. T. A. No. 47 of 2006, I. T. A. No. 64 of 2006 and I. T. A. No. 52 of 2006 were filed by the Commissioner of Income-tax, against a common order passed by the Income-tax Appellate Tribunal pertaining to the same assessee with regard to the assessment years 1994-95, 1995-96 and 1999-2000. 3. Noticing the question of law which had been formulated at the time of admission, and on a perusal of the record, and after taking into consideration the various arguments raised by the learned senior counsel for the parties, this Court had allowed the appeals filed by the Commissioner of Income-tax and the order of the Tribunal was set aside. 4. It is not a matter of any dispute that against the order dated May 11, 2007, passed by the Division Bench, special leave petitions had been preferred by the assessee before the Supreme Court. The aforesaid special leave petitions have been dismissed by the apex court on March 10, 2008 ((2008) 299 ITR 91). Leave has been declined. 5. After the dismissal of the aforesaid special leave petitions, the assessee has now chosen to approach this Court by filing the present review petitions. 6. We have heard Shri S.C. Bagadia, learned senior counsel for the asses-see/applicant and Shri R. L. Jain, learned senior counsel for the Revenue, who appears on advance copy, and with their assistance have also gone through the record of the case. 7. 6. We have heard Shri S.C. Bagadia, learned senior counsel for the asses-see/applicant and Shri R. L. Jain, learned senior counsel for the Revenue, who appears on advance copy, and with their assistance have also gone through the record of the case. 7. At the outset, on a query put by the court as to under which provision of the Income-tax Act, the present review applications, against the order dated May 11, 2007 in the income-tax appeal, are maintainable, Shri Baga-dia, learned senior counsel for the assessee very fairly states that although there is no specific provision under the Act for filing a review application but argues that there is no such bar under the Income-tax Act, 1961, and as such maintains that since the review applications raise arguable issue, therefore, the review applications should be entertained on this ground alone. In this regard, learned senior counsel places reliance upon a judgment of this Court in the case of Shrinath Buliyan Refinery v. CIT (2002) 255 ITR 215 (MP). 8. After taking into consideration the arguments raised by the learned senior counsel for the applicant-assessee, we are satisfied that in fact the income-tax appeals filed by the Commissioner of Income-tax having been decided by the Division Bench, through a detailed and reasoned order, and there being no power of review conferred upon the High Court under the Income-tax Act, the present review applications filed by the assessee are not even maintainable. It is well settled that the power of appeal and a power of review are statutory powers and can only be conferred by a particular statute, if so provided specifically. 9. It is well settled that the power to review is not an inherent power and it must be conferred by law either specifically or by necessary implication Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji AIR 1970 SC 1273 . The aforesaid proposition of law has been affirmed by the apex court in the case of Kewal Chand Mimani (Decd.) (by LRs.) v. S.K. Sen (2001) 6 SCC 512 . 10. In the case of CCE v. Steelco Gujarat Ltd. (2003) 12 SCC 731, it has been held by the apex court that the power of review is not an inherent power and must be expressly granted. 10. In the case of CCE v. Steelco Gujarat Ltd. (2003) 12 SCC 731, it has been held by the apex court that the power of review is not an inherent power and must be expressly granted. Again, in the case of Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mills Ltd. (2005) 13 SCC 777 , the Supreme Court has held that where a court or quasi-judicial authority, having jurisdiction to adjudicate on the merits, proceeds to do so, its judgment or order can be reviewed on the merits only if the court or the quasi-judicial authority is vested with power of review by express provision or by necessary implication. 11. In view of the aforesaid law settled by the apex court, it is apparent that a power of review is required to be vested specifically by express provision or by necessary implication. In fact, we find that while disposing of the said income-tax appeals through an order dated May 11, 2007, this Court had exercised its statutory appellate power vested under Section 260A of the Act. Thus, unless and until a specific power is provided to this Court, being the appellate court, to review the said order, the said order cannot be reviewed merely treating the power of review as an inherent power. We are conscious of the fact that the appellate jurisdiction of this Court carries with it statutory limitations under the statute, unlike the extraordinary powers which are enjoyed by this Court under Article 226 of the Constitution of India. 12. Since concededly, there is no specific provision providing a power of review to this Court, we find that the prayer made in the present applications, seeking review of the earlier order dated May 11, 2007, is wholly misconceived. 13. We have also perused the judgment in Shrinath Buliyan Refinery case (2002) 255 ITR 215 (MP), on which reliance has been placed by the learned senior counsel for the assessee. We find that the question before the Division Bench in that case was as to whether when an order had been passed by the High Court, dismissing the appeal in default, though by a reasoned order, whether an application under Order 41, Rule 19 of the Civil Procedure Code for readmission of the appeal was maintainable or not. We find that the question before the Division Bench in that case was as to whether when an order had been passed by the High Court, dismissing the appeal in default, though by a reasoned order, whether an application under Order 41, Rule 19 of the Civil Procedure Code for readmission of the appeal was maintainable or not. It was keeping in view the provisions of Section 260A(7), that it was held that such a power for readmission/restoration of the appeal is always enjoyed by the High Court. However, the enjoyment of such a power to restore the appeal cannot be treated to be a power to review the earlier order passed on the merits, after contest. 14. In view of the aforesaid legal position, we do not find it necessary to go into any other issues raised by the learned senior counsel, on the merits of the controversy. 15. At this stage, it is clarified that although the present review applications are delayed by 307 days, but keeping in view the fact that review petitions have been held as not maintainable, we do not offer any comments on the aforesaid issue. 16. Consequently, we dismiss the review applications. All the M. C. Cs. are disposed of accordingly. 17. C. C. as per rules.