AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (6) TMI 24
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....pplications, after hearing both the sides on merits were disposed of by this Tribunal as dismissed by a Common Order dated 29.05.2017. 03. In these petitions it is the grievance of the Applicants i.e. original respondents 1 and 2 that, this Tribunal, while passing the order dated 29.05.2017 has not taken into consideration the oral arguments and contentions in written arguments on the aspect of Delay and Latches. It is also the case of the Applicants/original respondents 1 and 2 is that this Tribunal has not taken into consideration the decisions of NCLT, Delhi Bench in case of Praveen Shankaralayam v. Elan Professional Appliances & others reported in 2016 SCC Online NCLT 85 And the decision in case of Esquire Electronics Inc. v. Netherlands India Communications Enterprises Ltd. Enterproses Ltd. reported in 2016 SCC Online NCLT 71 and Sanjay Agarwal and another and Sanjay Agarwal v. Meghalaya Finlease (P.) Ltd. 2017 SCC Online NCLT 28. 04. It is also pleaded that non-consideration of oral arguments on delay and latches as well as written submissions has resulted in grave miscarriage to Applicants. 05. These applications are filed under Section 420(2) of the Companies....
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.... Esquire Electronics Inc.'s case (supra) (3) Sanjay Agarwal's case (supra) and it is a mistake apparent from the record and such mistakes can be corrected under Section 420 sub-section 2 of the Companies Act. In support of this contention, learned counsel for Applicants relied upon the decision of Hon'ble Supreme Court in Saurashtra Kutch Stock Exchange Ltd.'s case (supra). 11. On the other hand, learned counsel appearing for the original petitioner/respondent herein contended that the order dated 29.05.2017 is a reasoned order based upon facts of the case and appreciation of material on record and therefore recalling such order amounts to exercise of powers of review and this Tribunal has no power to review its own order. He also contended that the Applicants have got right of appeal against the order dated 29.05.2017 made in IA No. 23 of 2016 and IA No. 24 of 2016. 12. Prayer made in these applications is to recall the order dated 29.05.2017 passed in IA No. 23 of 2016 and IA No. 24 of 2016 and pass fresh orders considering the oral arguments on Delay and latches and written argument on the aspect of delay and latches. 13. The following ....
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....tock Exchange Ltd.'s case (supra) which reads as follows: - 19. The said judgment was rendered basing upon sub-section 2 of Section 254 of the Income-Tax Act. Sub-section 2 of Section 254 of the IT Act and Section 420(2) of the Companies Act are in the same language. 20. In that case Income-tax Appellate Tribunal, Ahmedabad without taking into consideration the decision of Hon'ble High Court of Gujarat in Hiralal Bhagwati v. CIT [2000] 246 ITR 188 wherein the Hon'ble High Court of Gujarat held that the 'trust' could claim such exemption, passed order since it was not brought to its notice when the order was passed. Subsequently when assessee came to know about the judgment of Hon'ble High Court of Gujarat wherein it is held that 'trust' is entitled for exemption, brought the same to the notice of the Tribunal by filing application under Section 254(2) of the IT Act to correct the order stating that it is a mistake apparent from the record. Income-tax Appellate Tribunal corrected the mistake. Revenue Department carried the matter to Hon'ble High Court of Gujarat. Hon'ble High Court upheld the order of Income-tax Appellate Tribunal in rec....
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....ce, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised. 8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior court ....
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....t process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. If the view accepted by the court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record." 22. In the case on hand decisions relied upon by the learned counsel for Applicants in IA No. 23 of 2016 and IA No. 24 of 2016 are Praveen Shankaralayam's case (supra). It is contended that in that decision the Hon'ble NCLT, Delhi Bench held that the complaint regarding oppression and mismanagement has to be filed within reasonable time and such reasonable time for exercise of equitable jurisdiction under Sections 397 and 398 of the Companies Act, 1956 was held to be three years and, thereafter, main petition TP No. 125 of 2016 filed in the year 2016 for the alleged acts of oppression and mismanagement committed in the year 2011 has to be dismissed on the ground of delay although Limitation Act is not applicable. 23. It is a fact, the....
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.... irrespective of fact situation unlike the decision of Hon'ble High Court of Gujarat wherein a 'trust' was exempted from payment of income-tax in a case which is pending with Income Tax Tribunal. In fact, Hon'ble Supreme Court in the decision in Assistant Commissioner of IT, Rajkot as stated in para 21 of this order clearly held that mistake apparent from the record must be a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it. In the case on hand learned counsel appearing for the Applicants took lot of pain to establish that non-consideration of judgments by this Tribunal is a mistake apparent from the record. It is held by Hon'ble Supreme Court when two views are possible from the material on record, the view taken by the Tribunal though it is not correct or not, it cannot be said to be an apparent mistake on the face of the record. 25. The decision in Esquire Electronics Inc.'s case (supra) deals with the petition in respect of which Section 433 of the Companies Act, 2013 applies. Findings in the aforesaid decision on the aspect of delay is not a proposition of law that applies to ....