2015 (12) TMI 118 - HC - Income Tax

Court grants condonation of delay but dismisses review application for impermissible re-argument.

Income Tax Officer Versus Ajay Prakash Verma

The court allowed the application for condonation of delay under Section 5 of the Limitation Act, noting reasonable reasons for the delay despite the ... Review petition - Levy of interest upon the assessed income or upon the income declared in the return - Held that:- It appears that the department wants to argue the same issue again in this civil review application. This tantamounts to an appeal against the order passed by a Division Bench of this Court in Ajay Prakash Verma Versus Income Tax officer [2013 (1) TMI 140 - JHARKHAND HIGH COURT]. This is a civil review application in the format of an appeal. We are not sitting in appeal against the decision passed by a Division Bench of this Court. There may be even an erroneous order or decision rendered by a Division Bench of this Court, as per the department, but, the fact remains that the aforesaid issue of levying interest either upon the assessed income or upon the income declared in the return was already addressed to this Court and, the proposition propounded by this appellant was not accepted by this Court. This judgment and order is dated 25th July, 2012 in Tax Appeal No. 38 of 2010. Till today, this appellant has not preferred Special Leave Petition before Hon'ble Supreme Court. Thus, no clerical error or statistical error has been pointed out by this appellant, but, an error on the merits of this case has been pointed out by the appellant. This is an appeal in the form of civil review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court. See ARIBAM TULESHWAR SHARMA Versus ARIBAM PISHAK SHARMA [1979 (1) TMI 228 - SUPREME COURT ] The term 'mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision Issues Involved:1. Condonation of delay under Section 5 of the Limitation Act.2. Review of the order passed in Tax Appeal No. 38 of 2010 concerning the levy of interest under Section 234B of the Income Tax Act, 1961.Issue-wise Detailed Analysis:1. Condonation of Delay:The appellant filed an interlocutory application (I.A. No. 5725 of 2014) under Section 5 of the Limitation Act to condone a delay of 713 days in preferring the Civil Review Application. The court, after hearing both sides, noted the reasons for the delay, including the loss of the copy of the order and procedural issues within the appellant's department. Despite the respondent's argument that the appellant could have acted more vigilantly, the court found the reasons reasonable and condoned the delay. The application for condonation of delay was thus allowed and disposed of.2. Review of Order in Tax Appeal No. 38 of 2010:The Civil Review Application (No. 66 of 2013) was filed against the order dated 25th July 2012 in Tax Appeal No. 38 of 2010. The appellant contended that the Division Bench's decision, particularly in paragraph 23, was not in accordance with Section 234B of the Income Tax Act, 1961. The appellant cited a Punjab & Haryana High Court decision in Raj Kumar Singal Vs. Union of India to support their argument that interest should be levied on the assessed income per the amended Act.The court observed that the review application seemed to be an appeal in disguise. The Division Bench had already addressed the issue of whether interest should be levied on the assessed income or the income declared in the return and decided against the appellant's proposition. The court emphasized that the review application did not point out any clerical or statistical error but rather an error on the merits, which is not a ground for review.The court referred to several Supreme Court judgments, including Aribam Tuleshwar Sharma v. Aibam Pishak Sharma, Meera Bhanja v. Nirmala Kumari Choudhary, Parsion Devi v. Sumitri Devi, and Haridas Das v. Usha Rani Banik, to underline the limited scope of review. The judgments consistently held that review proceedings are not a substitute for an appeal and must be confined to errors apparent on the face of the record or other analogous grounds, not errors on merits.The court concluded that the appellant's arguments did not meet the criteria for review as established by precedent. Consequently, the Civil Review Application was dismissed for lack of substance.