TaxTMI 
TaxTMI 
2025 (5) TMI 1249
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....in favour of the writ petitioner, private respondent herein, which is to be recovered from the Managing Director, JBVNL. 2. The brief facts of the case leading to filing of the instant review, needs to be referred as under:- (i) The writ Petitioner-Firm (respondent herein) registered under the Companies Act, 1956 and engaged in the business of providing comprehensive engineering, procurement and construction services to the Core sector industries in India. The writ Petitioner-Firm has challenged the action of the Jharkhand Bijli Vitran Nigam Limited (JBVNL) in deducting Rs. 2,90,32,000/- from the running account bills raised against the supply of materials. (ii) The Petitioner-Firm was selected for the rural electrification works under Deen Dayal Upadhyaya Gram Jyoti Yojna in XIIth Plan for Giridih, Bokaro and Dhanbad. Later, the JBVNL issued the Letters of Award, vide (i) Letter of Award for supply of materials being, LoA No. 01/RE dated 5th February 2016, LoA No. 03/RE dated 5th February 2016 and LoA No. 05/RE dated 5th February 2016 for the projects at Giridih, Bokaro and Dhanbad and (ii) Letter of Award for erection and civil works being LoA No. 02/RE dated....
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....e the dishonest litigant and to this end, the Court is required to impose such cost that would make the litigant think twice before putting up any speculative claim or defence. Consequently, the writ Court has further directed that JBVNL must be saddled with cost of Rs. 5 Lacs, which shall be recovered from the Managing Director. (ix) Being aggrieved with the part of the order, i.e., the cost of Rs. 5 Lacs which has been imposed upon the JBVNL, shall be recovered from the Managing Director, hence, the instant review petition has been preferred by the petitioner, Managing Director JBVNL. 3. It is evident from the factual aspect that the issue pertaining to deduction of TDS @ 2% by the JBVNL from running account bills for supply of material by the petitioner and also retention of amount representing 2% of the value of the Work Order for supply of materials towards the TDS liability so demanded by the Income Tax Department, fell for consideration before this Court in the writ petition being W.P. (T) No. 5475 of 2023. 4. The writ Court, while taking into consideration the purport of the provisions of the Income Tax Act, follows the consequences as provided under section ....
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....has been paid by the JBVNL, which has been directed to be recovered by the Managing Director, is fit to be reviewed by recalling that part of the order. Submission of the learned counsel for the respondent-writ petitioner: 9. Mr. M.S. Mittal, learned senior counsel for the respondent-writ petitioner has submitted that the amount although has been paid to the petitioner by the JBVNL but it is incorrect on the part of the review petitioner to take the ground that the Coordinate Bench has passed an order in absence of Chairman-cum-Managing Director, JBVNL, rather, if the party position will be taken into consideration, the JBVNL has been impleaded as party through the Chairman-cum-Managing Director by way of its impleadment as respondent no. 3 (in writ petition). 10. The order has been passed by the Coordinate Bench of this Court on the basis of counter affidavit filed on behalf of the JBVNL under the authority of Chairman-cum-Managing Director of JBVNL and hence, the Coordinate Bench has found the laches committed on the part of individual functionary. However, only in order to compensate by way of imposing a cost upon the JBVNL by way of immediate measure, the direction has....
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.... needless to emphasis that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XL VII, Rule I of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified, grounds, namely; (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason." 17. Likewise, in the case of Col. Avatar Singh Sekhon Vrs. Union of India (1980) Supp. SCC 562, the Hon'ble Apex Court observed that a review of an earlier order cannot be done unless the Court is satisfied that the material error which is manifest on the face of the order, would result in miscarriage of justice or undermine its soundness. The observations made are as under: "12. A review is not....
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.... maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived." 19. It is evident from the aforesaid judgments that the power of review is to be exercised if there is any error occurred on the face of the order or the factual aspect could not have been brought to the notice of this Court in spite of the due diligence having been taken in the matter of making available the factual aspect of the relevant documents. 20. The position of law is well settled,....
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....as a limited purpose and cannot be allowed to be 'an appeal in disguise'. 26. Further, the law is well settled that a review petition, has a limited purpose and cannot be allowed to be "an appeal in disguise", as has been settled by the Hon'ble Apex Court in the case of Parsion Devi v. Sumitri Devi (1997) 8 SCC 715, for ready reference the relevant paragraph of the aforesaid judgment is quoted as under: "9. Under Order 47 Rule 1CPC 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 1CPC. In exercise of the jurisdiction under Order 47 Rule 1CPCit is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise"." 27. Similarly, in S. Murali Sundaram Versus Jothibai Kannan and Others 2023 SCC OnLine SC 185, the Hon'ble Apex Court observed as under: "15.....
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....e record. 16.2. A judgment pronounced by the court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. 16.3. 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 record e justifying the court to exercise its power of review. 16.4. In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected". 16.5. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise". 16.6. Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. 16.7. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.-" 29. In the backdrop of the aforesaid settled position of law, we are now proceeding with the merit of ....
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....ning bills of the petitioner-Firm are patently illegal. Such deductions caused loses to the petitioner-Firm which filed its Income Tax returns but was deprived of Rs. 2,90,32,000/- and thereby suffered business or atleast interest losses. On the other hand, the JBVNL was unjustly enriched and need to restitute the petitioner-Firm. The refund of Rs. 2,90,32,000/- must therefore carry interest as a matter of course. In "Indian Council for Enviro-Legal Action v. Union of India" (2011) 8 SCC 161, the Hon'ble Supreme Court held that this is the bounden duty of the Court to neutralize unjust enrichment by imposing compound interest and punitive costs. In paragraph No. 178 of the reported judgment, the Hon'ble Supreme Court held as under: "178. To do complete justice, prevent wrongs, remove incentive for wrongdoing or delay, and to implement in practical terms the concepts of time value of money, restitution and unjust enrichment noted above-or to simply levelise-a convenient approach is calculating interest. But here interest has to be calculated on compound basis-and not simple-for the latter leaves much uncalled for benefits in the hands of the wrongdoer." 18. As per ....
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....sted on 21st March 2024." 20. In response thereof, a supplementary counter-affidavit has been filed stating that in terms of Clauses 10.1 and 10.7 of the General Conditions of Contract whereunder the Contractor is solely and entirely responsible for any taxes including income tax, the JBVNL is empowered to adjust such amount from the price/bills released to the Contractor. The JBVNL has further stated that in case the appeal filed by it fails it shall be required to deposit the entire amount with interest and penalties and then the TDS return shall be filed and certificate i.e. Form-16A for the same shall be generated and issued to the Contractor. In the circumstances of the case, we hold that the stand taken by the JBVNL lacks bona fide; short to saying actuated with oblique motive. 21. The imposition of cost on the party which started litigation without any just cause or took false and frivolous defences is necessary to discourage the dishonest litigant. To this end, the Court is required to impose such cost that would make the litigant think twice before putting up any speculative claim or defence. In "Salem Advocate Bar Assn. (II) v. Union of India" (2005) 6 S....
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.... the withheld amount and cost imposed upon the Managing Director of the respondents. For ready reference, the prayer made in this review petition is being referred as under: "...pass appropriate orders for the removal of interest liability over the withheld amount and cost imposed upon the Managing Director of the respondents. ... 36. This Court, by taking into account all of the contentions of the learned counsel for the parties, had dismissed the said review petition vide order dated 01.08.2024, for ready reference, the relevant paragraph of the aforesaid order is being quoted as under: "21. The ground of review are two folds that there is vagueness in paragraph-18 wherein the liability of interest has been imposed upon the total amount but from which date the interest is to be accrued on the total amount of Rs. 2,90,32,000/-, is not there. The second ground is that the Managing Director has been saddled with cost of Rs. 5 lakhs which has been passed by the Court by putting liability in not acting with due diligence and the third ground has been taken that the Managing Director was not a party to the proceeding and as such, saddling of cost of Rs. 5 ....
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....enge the finding so recorded by the original court before the higher forum. 26. If the contention of the learned standing counsel for the review petitioner will be accepted, then the same will be nothing but exercising the power of appeal in the garb of review. 27. The second and third ground is casting liability by saddling cost of Rs. 5 lakh upon the Managing Director who has not been impleaded as party to the proceeding. 28. This Court has considered in the light of the provision of clause 10.7.4 of the Regulation, 2015 and due to non-adherence of the said clause by the competent authority in not refunding the amount and if in that pretext, personal liability has been imposed upon the Managing Director by saddling cost of Rs. 5 lakh, the same cannot be said that there is no consideration of the issue in the light of the statutory provision applicable rather there is consideration which might be said to be wrong consideration, for which the remedy available is not of review but of appeal. 29. It has also been submitted that the Managing Director was not a party. 30. This Court is of the view that if the Managing Director was not a part....
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.... the Court reveals that a decision in the context of the order dated 14th March 2024 passed by this Court has been taken at the highest level of the Managing Director of JBVNL. Therefore, we are of the definite opinion that the JBVNL must be saddled with cost of Rs. 5 Lacs which shall be recovered from the Managing Director." 41. It needs to refer herein that the said order dated 08.04.2024 passed in W.P. (T) No. 5475 of 2023 and order dated 01.08.2024 passed in Civil Review No. 71 of 2024 has been carried to the Hon'ble Apex Court, being Special Leave Petition (Civil) Diary No(s).40660 of 2024. The said SLP was dismissed vide order dated 09.12.2024. For ready reference, the order dated 09.12.2024 passed by the Hon'ble Apex Court is being quoted as under: "O R D E R 1. Delay condoned. 2. Heard the learned counsel appearing for the petitioners. 3. We are not inclined to interfere with the impugned judgment passed by the High Court. Hence, the Special Leave Petitions are dismissed. 4. Pending applications, if any, shall stand disposed of." 42. It needs to refer herein that as per the pleading made in the instant review petition, wher....
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....ath Singh, resident of Dewanji Street, Hooghly, P.O. and P.S.-Rishra, District Hooghly, Pin Code-711228, West Bengal. .... Petitioner Versus 1. The State of Jharkhand through the Principal Secretary, Department of Energy, having its office at SBI Building, Project Bhawan, Dhurwa, P.O. & P.S.-Dhurwa, District-Ranchi, Jharkhand-834004. 2. Jharkhand Bijli Vitaran Nigam Limited, a State Government Company, having its Registered Address at Engineering Building, H.E.C, Dhurwa, P.O. & P.S. Dhurwa, District-Ranchi, Jharkhand-834004. 3. Chairman-Cum-Managing Director, Jharkhand Bijli Vitaran Nigam Limited, having its office at Engineering Building, H.E.C, Dhurwa, P.O & P.SDhurwa, District-Ranchi, Jharkhand - 834004. 4. Senior Manager (Finance & Accounts), Jharkhand Bijli Vitaran Nigam Limited, having its office at Engineering Building, H.E.C, Dhurwa, P.O & P.S-Dhurwa, District-Ranchi, Jharkhand -834004. 5. Joint Commissioner of Income Tax (TDS), having its office at Income Tax Building, M.G. Road, P.O-Railway P.O, P.S-Chutia, District-Ranchi-834001. ... Respondents 46. Further, the review petition, being Civil Review No. 71 of 2024 ha....
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....48. The further reason for referring the party position is that the Chairman-cum-Managing Director was fully conscious with the issue and the order passed by the Coordinate Bench on full contest based upon the stand taken inter-alia in the counter affidavit filed under the authority of the Chairman-Cum-Managing Director of JBVNL. 49. The Chairman-cum-Managing Director, the incumbent, the review petitioner herein was party before the Court and also filed an affidavit, therefore, on the basis of the aforesaid factual aspect, this Court is of the considered view that recourse of civil review is not available to the review petitioner on the basis of Para-30 of the order dated 01.08.2024 wherein this Court has observed that if the Managing Director was not a party and when the Managing Director has been saddled with cost of Rs. 5 lakh then the same can only be questioned by the Managing Director by directly approaching to the Court. But it is not the case herein as the Chairman-cum-Managing Director, the incumbent, the review petitioner herein was party before the writ Court as well as before this Court when the instant issue was taken up in the Civil Review No. 71 of 2024. 50. It....
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....om the date of his joining, the Apex Court found the same to be illegal. The Apex Court has observed that the authorities were hand in gloves with the employee for granting him a higher pay scale. Since the higher payment made was not a bona fide error, the Court directed the recovery of the said amount from the 4th Respondent and from the officers responsible for granting him undue benefit, for ready reference the relevant paragraph is being quoted as under: "Since during the interregnum, the respondent No. 4 had been unjustifiably paid salary in the higher pay scale, one option could be that whatever had been paid to him till date, be left as such and his pay could be directed to be re-fixed from a future date. However, having regard to the level of the post of the respondent No. 4 and the manner in which he was extended special treatment at every step and was granted higher pay scale, we do not propose to adopt that course as this is not a case of any bona fide error. It was a well-planned and deliberate infraction. We therefore direct recovery of the excess amount paid to the respondent No. 4, though in instalments and/or from the officer(s), who were directly involved....