TaxTMI 
TaxTMI 
2002 (9) TMI 6
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....t. 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 cause list nor did the name of counsel appear therein. On October 15, 2001, the matter was taken up for hearing and although nobody had appeared on behalf of the petitioner, instead of returning the question unanswered, this court went into the merits of the matter and passed the aforementioned judgment. Mr. Sanjeev Khanna, learned counsel appearing on behalf of the Revenue, has raised a question of demurrer to the effect that this court has no jurisdiction to recall the said order inasmuch as while exercising the power under section 256 of the Income-tax Act, 1961 (in short "the Act"), the court exercises a limited jurisdiction. Learned counsel would submit that the power of review having not expressly or by necessary ....
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....oked 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 what cannot be done directly, cannot be done indirectly. The review of its own order by the Tribunal is forbidden in law, it cannot be permitted to achieve the same object by exercising its power under sub-section (2) of section 254. The Income-tax Appellate Tribunal does not have an inherent power of review." The High Court, however, being a court of record within the meaning of article 215 of the Constitution of India stands on a different footing. In Grindlays Bank Ltd. v. Central Government Industrial Tribunal [1981] 58 FJR 140, the apex court made a distinction between the power of substantive review and that of procedural review. The Act does not lay down the procedure for exercise of power of the....
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....er, 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 prescribed under rule 6 under the Appellate Side Rules, 1965, wherein it was stated that in default of the appearance of the assessee, the same should be heard and determined in his absence. It was opined: "It is also significant to note that the Limitation Act, 1963, will not be applicable in 'filing the tax cases. If the Limitation Act is applicable then we have got to see whether there is any reasonable cause for condoning the delay. Inasmuch as the Limitation Act is not applicable to tax case reference, further probe into this matter does not arise. Under section 256 of the Income-tax Act, 1961, this court is functioning with advisory jurisdiction in giving its opinion on the question referred to it. The....
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....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 strong reliance has been placed by Mr. Khanna, Lahori J. observed: "6. What is a power to recall? Inherent power to recall its own order vesting in Tribunals or courts was noticed in Indian Bank v. Satyam Fibres (India) (P) Ltd. ([1996] 5 SCC 550) Vide para. 23, this Court has held that the courts have inherent power to recall and set aside an order (i) obtained by fraud practised upon the court, (ii) when the court is misled by a party, or (iii) when the court itself commits a mistake which prejudices a party. In A.R. Antulay v. R.S. Nayak, this Court has noticed motions to set aside judgments being permitted where (i) a judgment was rendered in ignorance of the fact that a necessary ....
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.... 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, while administering justice, does not take into consideration as to who is before it. Every litigant is entitled to the same consideration and if an order is warranted in the interest of justice, the contention of Mr. Jethmalani cannot stand in the way as a bar to the making of that order." In Director of Income-tax (Exemption) v. ITAT [1998] 232 ITR 688 (Delhi), it was held: "So far as the order dated November 7, 1994, rejecting the petitioner's application as barred by time is concerned, the same was certainly erroneous as the limitation for filing an application under 256(1) of the Act would commence from the date of receipt of the order by the Commissioner of Income-tax, as ....
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....bunal, 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 adjudication. The extent and the nature of the investigation and the degree of satisfaction required for granting or rejecting the application for interim relief would depend upon the nature of the dispute and the circumstances in each case. No hard and fast rule can be laid down in this respect. However, no Tribunal or court is prevented or prohibited from passing interim orders on the ground that it does not have at that stage all the material required to take the final decision. To read such an inhibition in the power of the Tribunal or a court is to deny to it the power to grant interim relief when reference for such relief is made. Hence, it will have to be held that the....
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.... 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, as on the afternoon in question here, it seems to me that it is no answer to the applicant to say: "Well, even if the case had been properly conducted, the result would have been the same." That is mixing up doing justice with seeing that justice is done: Stringer v. Minister of Housing and Local Government [1970] 1 WLR 1281, 1297 (QB).' In Maxwell v. Department of Trade [1974] 1 Q.B. 523, 540 Lawton L.J. expressed a similar idea when he said, 'doing what is right may still result in unfairness if it is done in the wrong way.' Bans v. British Wool Marketing Board [1957] S.C. 72, 82 per Lord President (Clyde). It is because the assurance that justice has been seen t....