Case Law Details
Jharkhand State Cricket Association Vs CIT (Exemptions) (Jharkhand High Court)
Jharkhand High Court held that review can only be sought if there is a mistake or an error apparent on the face of the record. A review petition has a limited purpose and cannot be allowed to be ‘an appeal in disguise’. Accordingly, review petition dismissed.
Facts- The present review petition has been filed for review of the order dated 11.07.2024 passed in T.A. No. 24 of 2019. The serious objection has been made on behalf of learned counsel appearing for the respondent/appellant Income Tax that the said order since has been passed on the concession given by the learned counsel appearing for the review petitioner/respondent and therefore, after such concession, there cannot be a review of the order dated 11.07.2024 which is being sought for review by filing the instant review petition.
Conclusion- Hon’ble Apex Court in the case of Kamlesh Verma v. Mayawati, reported in (2013) 8 SCC 320 has observed that review proceedings have to be strictly confined to the scope and ambit of Order XLVII Rule 1, CPC. As long as the point sought to be raised in the review application has already been dealt with and answered, parties are not entitled to challenge the impugned judgment only because an alternative view is possible.
Under Order 47 Rule 1 CPC 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 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be ‘reheard and corrected’. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be ‘an appeal in disguise’.
Held that on the basis of the discussion made herein above and taking into consideration the ratio laid down by the Hon’ble Apex Court in the case of Sanjay Kumar Agarwal Vrs. State Tax Officer (1) & Anr., and in the case of Rimpa Saha is of the view that no ground is available to review the order dated 11.07.2024 passed by this Court in T.A. No. 24 of 2019. Accordingly, the instant review petition stands dismissed.
FULL TEXT OF THE JUDGMENT/ORDER OF JHARKHAND HIGH COURT
1. This instant interlocutory application has been filed under Section 5 of the Limitation Act for condoning the delay of 40 days in preferring the instant review petition.
2. Reason has been assigned therein as it has been stated in paragraph-3.
3. Kumar Vaibhav, learned senior standing counsel appearing for the Income Tax is fair enough to submit that the delay in filing the instant review may be condoned so that the review may be disposed of on the merit.
4. Considering the said submission, the delay of 40 days in filing the instant review petition is hereby condoned.
5. The instant interlocutory application being I.A. No.11869 of 2024 stands allowed and disposed of.
Civil Review No.06 of 2025
6. The present review petition has been filed for review of the order dated 11.07.2024 passed in T.A. No. 24 of 2019.
7. The serious objection has been made on behalf of learned counsel appearing for the respondent/appellant Income Tax that the said order since has been passed on the concession given by the learned counsel appearing for the review petitioner/respondent and therefore, after such concession, there cannot be a review of the order dated 11.07.2024 which is being sought for review by filing the instant review petition.
8. We have heard the learned counsel for the parties.
9. The brief facts of the case as per the pleading made in the said Tax Appeal have also been incorporated in the present review petitions which need to be referred herein as under:
10. The Commissioner of Income Tax (Exemptions) / respondent herein has moved before this Court in Tax Appeal No.24 of 2019 against the order dated 15.03.2019 passed by Income Tax Appellate Tribunal, Ranchi Bench, Ranchi in I.T.A. No. 108/Ran/2018 for the assessment year 2014-15 preferred by the respondent/review petitioner herein whereby and whereunder, the learned I.T.A.T. has allowed the said appeal and has held that the proviso to Section 2(15) of the Income Tax Act, 1961 is not applicable to the respondent / review petitioner and has set aside the order passed by the learned Commissioner of Income Tax (Exemptions) under Section 263 by which the matter was remanded back to the Assessing Officer for fresh assessment.
11. The matter was heard by Co-ordinate Bench of this Court on 11.07.2024.
12. Learned counsel appearing for the Income Tax, the respondent/appellant, has made a submission that the questions which are involved in the appeal has already been decided by Hon’ble Apex Court in the Case of Assistant Commissioner of Income Tax (Exemption) v. Ahemdabad Urban Development Authority, (2023) 4 SCC 561 wherein the Hon’ble Apex Court has remitted the matter for fresh consideration as held in Paragraph 286.7.
13. Learned counsel appearing for the respondent / the review petitioner herein, has accepted such submission.
14. Accordingly, vide order dated 11.07.2024 the Division of this Court, in pursuance to such concession, having been given by the learned counsel for the respondent/the review petitioner had disposed of the appeal by remitting the matter to the authority concerned to decide the same afresh in view of the ratio decided by the Hon’ble Apex Court in the case of Assistant Commissioner of Income Tax (Exemption) (supra).
15. Review of the aforesaid order dated 11.07.2024 has been sought for in the instant review petition.
16. In the backdrop of the aforesaid facts it needs to refer herein the settled connotation of law that once the matter has been decided on the concession having been given by the learned counsel appearing for the parties then it is not available for the concerned party to seek review of the said order reason being that the review can only be sought for if there is any error apparent on the face of record or any factual aspect which was not within the knowledge of the litigant even in spite of due diligence then only the power of review can be exercised.
17. The Hon’ble Apex Court in the case Moran Mar Basselios Catholicos and Anr. vs. Most Rev. Mar Poulose Athanasius and Ors., [AIR 1954 SC 526], particularly at paragraph-32 has observed as under:
“32. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is 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.”
18. Likewise, in the case of 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 a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante v. Sheikh Habib 1975 1 SCC 674 this Court observed: ‘A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. ….. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.”
19. Further, the Hon’ble Apex Court in the case of Kamlesh Verma v. Mayawati, reported in (2013) 8 SCC 320 has observed that review proceedings have to be strictly confined to the scope and ambit of Order XLVII Rule 1, CPC. As long as the point sought to be raised in the review application has already been dealt with and answered, parties are not entitled to challenge the impugned judgment only because an alternative view is possible. The principles for exercising review jurisdiction were succinctly summarized as under:
“20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason. The words “any other sufficient reason” has been interpreted in Chajju Ram v. Neki, and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasiusto mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd.,.
20.2. When the review will not be maintainable:—
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not 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.”
20. 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.
21. The position of law is well settled, as would appear from the reference of the judgment made hereinabove that the review of the judgment can only be made if the new fact has come which could not have been brought to the notice of the Court in spite of the due diligence, as has been held by the Hon’ble Apex Court in Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose (supra).
22. It is evident that while power of review may be inherent in the High Court to review its own order passed in a writ petition, the same has to be exercised on well-recognised and established grounds on which judicial orders are reviewed. For example, the power may be exercised on the discovery of some new and important matter or evidence which was not within the knowledge of the parties seeking review despite due exercise of diligence when the order was made.
23. Review can also be sought when the order discloses some error apparent on the face of record or on grounds analogous thereto. These are all grounds which find mention in various judicial pronouncements right from the earliest time as well as in the Rules of Order 47 of the Civil Procedure Code as permissible grounds of review.
24. 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.
25. Under Order 47 Rule 1 CPC 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 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be ‘reheard and corrected’. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be ‘an appeal in disguise’.
26. In the very recent judgment in the case of Sanjay Kumar Agarwal Vrs. State Tax Officer (1) & Anr., reported in (2024) 2 SCC 362, the Hon’ble Apex Court while interpreting the provision of Order 47 Rule 1 of the C.P.C. the proposition has been laid down to entertain the review, as has been held at paragraph – 16.1 to 16.7 which reads as under:-
“16.1. A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the 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 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.—“
27. This Court is now proceeding to examine as to whether the factual aspect as available in the present case and the ground which has been agitated is available to exercise the power of review.
28. It is evident from the factual aspect that the order which has been sought for review was passed on the concession as provided by the parties for fresh adjudication.
29. At this juncture, the learned counsel appearing for the respondent /appellant has contended that if once concession has been given and based upon that order has been drawn then it is not available for the parties to sought review of the such order.
30. The learned counsel appearing for the respondent /appellant herein has relied upon the order dated 20.01.2025 passed by the Hon’ble Apex Court in the case of Rimpa Saha & Ors. v. District Primary School Council, Malda & Ors. [Civil Appeal No(s).853 of 2025 (Arising out of S.L.P. (Civil) No(s). 27722 of 2024) wherein the issue of concession has been taken note and when it was retracted back by the learned counsel who had given the concession said to be not in writing then on that pretext the Hon’ble Apex Court has been pleased to come to the conclusive finding that in the Constitutional Court there is no requirement to give the consent in writing, rather, if the consent has been given by way of oral consent then the same is to be accepted, for ready reference the relevant paragraph of the aforesaid order is being referred as under:
5. We must record here what is recorded in the order dated 26th April, 2024 is the oral consent of the learned counsel appearing for the respondents herein. All the Constitutional Courts in our country accept the oral statements made on behalf of the parties by their respective learned counsel. The order impugned proceeds on a footing that there is no consent given in writing. As the oral consent of the learned counsel appearing for the respondents has been expressly recorded, the order dated 26th April, 2024 could not have been reviewed on the ground that there was no written consent.
6. Therefore, the impugned order is hereby set aside and the order dated 26th April, 2024 is hereby restored. We make it clear that the parties aggrieved by the said order can always challenge the said order in accordance with law.
31. However, Mr. Amit Kumar Das, learned counsel appearing for the review petitioner has fairly submitted that the issue of retracting back from the concession is not the ground for seeking review.
32. Be that as it may, this Court is of the view that since the Co-ordinate Bench has passed order on the concession given by the learned counsel appearing for the review petitioner and the matter has been remitted before the authority to decide afresh in view of the judgment passed by the Hon’ble Apex Court, hence, this case is not coming under the fold of the power which is to be exercised under the jurisdiction of review.
33. On the basis of the discussion made herein above and taking into consideration the ratio laid down by the Hon’ble Apex Court in the case of Sanjay Kumar Agarwal Vrs. State Tax Officer (1) & Anr., (supra) and in the case of Rimpa Saha (supra) is of the view that no ground is available to review the order dated 11.07.2024 passed by this Court in T.A. No. 24 of 2019.
34. Accordingly, the instant review petition stands dismissed.
35. Pending Interlocutory Application(s), if any, stands disposed of.
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