High Court Of Calcutta
Smt. Bidya Devi vs. CIT & Ors.
Sections CPC 114, CPC 141, CPC Order 47, 179
Asst. Year 1968-69, 1970-71, 1972-73, 1974-75
Dilip Kumar Seth & Rajendra Nath Sinha, JJ.
RVW No. 2244 of 2000 in F.M.A. No. 484 of 2000
15th May, 2003
Counsel Appeared
Ram Chandra Prosad, for the Appellant : Anindya Mitra & J.P. Khaitan, for the Respondent
JUDGMENT
D.K. SETH, J. :
This is an application for review of an order passed on 12th June, 2000, in F.M.A. 484 of 2000 (F.M.A.T. 3124 of 1992) [reported as Smt. Bidya Devi vs. CIT & Ors. (2000) 164 CTR (Cal) 109— Ed.] by the Division Bench presided over by Mr. Justice Y.R. Meena and Mr. Justice R.K. Mazumdar, as Their Lordships then were. Mr. Prosad has taken three grounds, the first of which is that while the judgment was reserved, Mr. Prosad was asked to submit his written notes on submissions but before written notes on submissions could be submitted the judgment was delivered. Mr. Prosad, in his written notes of submission, had cited some decisions, which he could not cite at the time of hearing. Since the judgment was delivered before he could submit his written submission, those decisions were not considered, and further the Court had assured that there would be further hearing before the delivery of the judgment but that was not adhered to. The second question he raised is that the Court did not take into consideration the law as it stood on 12th of June, 2000, in respect of the interpretation of s. 179 of the IT Act, 1961, as was amended w.e.f. 1st Oct., 1975. The Court had relied on the decision passed by the Kerala High Court, which, according to him, was not applicable. It did not consider the decision of the Bombay High Court in Union of India & Ors. vs. Manik Dattatreya Lotlikar (1988) 67 CTR (Bom) 37 : (1988) 172 ITR 1 (Bom) holding the field. Therefore, the judgment is per incuriam, which is a mistake apparent on record. The third question that he has raised is that the company went into liquidation even before the husband of the petitioner ceased to be the director of the company. Therefore, on facts, the Court had committed a mistake apparent from record. We have gone through the decision sought to be reviewed, namely, the decision in F.M.A. No. 484 of 2000 (F.M.A.T. No. 3124 of 1992) disposed of on 12th June, 2000 since reported at [Smt. Bidya Devi vs. CIT & Ors. (2000) 164 CTR (Cal) 109 : (2000) 245 ITR 196 (Cal)]. It appears from the said decision (12th June, 2000) that the Court had taken note of an earlier order passed by this Court between the parties in respect of the self-same question passed in CO No. 154(W) of 1985 on 17th of February, 1986, by Mr. Justice Suhas Chandra Sen, as His Lordship then was. In the said order (dt. 17th Feb., 1986) the Court had held that the amendment of s. 179 effective from 1st Oct., 1975, was not retrospective. The assessment for the year 1974-75 would be governed by the IT Act as it stood on 1st of April, 1975 (p. 100 of the PB). Therefore, the amended provision could not be invoked in the case of thepetitioner. It was also held (p. 100 of the PB) that unless the company was shown to have been gone into liquidation at the time when the director had ceased to be a director, s. 179 had no manner of application. However, the case was remanded to the ITO for proper decision. It is noted in the decision (dt. 12th June, 2000) that the AO found that the company had not gone into liquidation. No appeal was preferred against the order of the AO. There was a suo motu revision by the CIT(A) under s. 263 of the IT Act, against which this writ petition has been filed. The CIT(A) has not recorded any finding that the company had gone into liquidation. On the other hand, it had proceeded on the basis of the decision of Manik Dattatreya Lotlikar (supra) and had held it is immaterial whether the company had gone into liquidation or not and had applied s. 179 as amended w.e.f. 1st of Oct., 1975. This has since been challenged in this writ proceeding out of which this appeal arises.
The Court in the decision dt. 12th June, 2000, had taken note of all these situations. Even if we assume that the contention of Mr. Prosad was not considered while delivering the judgment and that the situation in law was wrongly appreciated, even then we cannot help because of the fact that in the decision by this Court between the parties in CO No. 154(W) of 1985 disposed of on 17th Feb., 1986, in respect of the self-same question, it was held that the provision of s. 179 was not retrospective and could not be attracted. This decision is binding inter se the parties and the Court cannot go behind the same. The order by the AO or the CIT could not run contrary to the said finding. It further appears that the Division Bench in its order dt. 12th June, 2000, had noticed the decision in Manik Dattatreya Lotlikar (supra) as well as the decision by the Kerala High Court in Ratanlal Murarka & Ors. vs. ITO & Ors. (1981) 130 ITR 797 (Ker). While dealing with those decisions, it had held that the Kerala High Court was not dealing with the question of retrospectivity of the amendment of s. 179 and, therefore, it had no manner of application. Whereas about the Bombay High Court decision in Manik Dattatreya Lotlikar (supra) was held to be inapplicable in the present facts and circumstances of the case. Inasmuch as the Division Bench in the decision dt. 12th June, 2000, had held that this question was concluded between the parties by the decision dt. 17th Feb., 1986, in CO No. 154(W) of 1985 remanding the case to the AO. The scope of remand was limited to the extent of finding as to whether the company had gone into liquidation on the basis of the determination by the Court in the order dt. 17th Feb., 1986, that the husband of the petitioner would not be liable unless the company had gone into liquidation, after holding that the amendment of s. 179 was not retrospective. This finding would stare on the face of the parties and operate as res judicata. On this distinctive feature, the Division Bench had held that the Bombay decision in Manik Dattatreya Lotlikar (supra) would be inapplicable in the present case.
In our view, it was so held rightly. Inasmuch as the AO was bound by the said order of remand. The order of remand is confined only to the extent it was remanded. The AO could not sit on appeal over the decision by the order of remand. The matters finally disposed of by the order of remand cannot be reopened when the matter comes back after the final order upon remand on appeal or otherwise to the Court remanding the matter. If no appeal is preferred against the order of remand, the matters finally decided in the order of remand can neither be subsequently reagitated before the Court to which remanded nor before the Court where the order passed upon remand is challenged in appeal or otherwise from such order. The Court, to which the matter is remanded, has to act within the order of remand. It is not open to such Court or authority to do anything but to carry out the terms of the remand even if it considers it to be not in accordance with law. Once a finality is reached, it cannot be reopened. Even if the Supreme Court holds otherwise even then the Courts cannot go back on its earlier order of remand. It can only be done through review of the order of remand. It cannot be achieved in the appeal against the order passed upon remand. Therefore, the finding and the conclusion arrived at by the Division Bench in its order dt. 12th of June, 2000, is a decision on the basis of admitted facts in respect of the implication of the order dt. 17th Feb., 1986, passed in CO No. 154(W) of 1985 (supra), which is a decision binding between the parties and had reached finality incapable of being reopened in the subsequent proceedings or appeal, as the case may be. Therefore, it cannot be attributed to be a mistake either on fact or in law. Such a question cannot be a subject- matter of review. It could have been a subject-matter of appeal.
The question of review under s. 154 or 254 of the IT Act may have different implication. A review of an order passed by this Court in writ jurisdiction is not subject to s. 154 or 254 of the IT Act. At the same time, s. 141 of the Code of Civil Procedure (CPC) excludes its application to writ proceedings. Whereas the Appellate Side Rules (AS Rules) for Art. 226 of the Constitution in r. 53 provides that save and except as provided in the AS Rules and subject thereto the procedure provided in CPC in regard to suits shall be followed, as far as it can be made applicable, in all proceedings for issue of a writ. The AS Rules does not provide for any procedure for review. Therefore, as far as it can be made applicable, the provisions of CPC would apply in principle to a proceeding for review in connection with writ proceedings. The principle enunciated under CPC in s. 114 r/w Order 47 speaks of error apparent on the face of the record. Order 47 envisages discovery of new and important matter of evidence, which after exercise of due diligence was either not within the knowledge of the applicant or could not be produced by him at the time when the judgment was delivered or on account of the same mistake or error apparent on the face of the record or for any other sufficient reasons on which review can be asked for. In this case, it is not an evidence, which was not within the knowledge of Mr. Prosad or which could not be produced by him after due diligence. On the other hand, he contends that it was a mistake or error apparent on the face of the record and, particularly, a mistake in law. An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, it must be left to be determined judicially on the facts of each case [Hari Vishnu Kamath vs. Ahmed Ishaque & Ors. AIR 1955 SC 233]. Error is not one limited to one of fact; it includes obvious error of law [M.K. Venkatachalam, ITO & Anr. vs. Bombay Dyeing AIR 1958 SC 875]. Not mere error of fact or law, but error apparent on the face of the record is a ground for review. There is no real distinction between a mere erroneous decision and an error apparent on the face of the record. Where error of a substantial point of law stares one in the face, and there could reasonably be no two opinions, clear case of error apparent on the face of the record would be made out [Thungabhadra Industries Ltd. vs. The Government of A.P. represented by the Dy. Commr. of Commercial Taxes, Anantapur AIR 1964 SC 1372]. An error, which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record [Satyanarayan Laxminarayan Hedge & Ors. vs. Mallikarjun Bhavanappa Tirumale AIR 1960 SC 137]. If the law that was applied is not the law, which is applicable, it will be an error apparent on the fact of the record [Raja Shatrunjit (Dead) by LRs vs. Mohammad Azmat Azim Khan & Ors. AIR 1971 SC 1474]. If the judgment is defective on the face of it in that it did not effectively dealt with and determined an important issue on which depends the title of the plaintiff and the maintainability of the suit, this is certainly an error on the face of the record [Moran Mar Basselios Catholicos & Anr. vs. Most Rev Mar Poulose Athanasius & Ors. AIR 1954 SC 526]. There is no reason to construe the word ‘record’ in a very restricted sense and include within that term only the document, which initiated the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record [Moran Mar Basselios Catholicos & Anr. vs. Most Rev Mar Poulose Athanasius & Ors. (supra)]. The mistake or error is not confined to the judgment itself, but on any document constituting the records. Error apparent on the face of the record is an error, which can be seen by a mere perusal of the record without reference to any other matter. We had occasion to deal with such question in APOT No. 735 of 2002 disposed of on 12th May 2003— Vijay Mallya vs. Asstt. CIT (Inv.) [reported at (2003) 183 CTR (Cal) 201—Ed]. The mistake must be patent and self-evident in respect of which there cannot be two different views.
In this case, having regard to the decision, it is not possible to describe the same that it has decided in ignorance of the settled principle of law and that there is an error in law staring on the face. Even if the decision could be said to be erroneous, still then the same could not have been subjected to review. However, on facts, we do not find the said decision to be an erroneous decision not to speak of any error staring on the face to be construed to mean one apparent on the face of the record. We are of the view that there is no error in fact or law in this case. The earlier decision (dt. 17th Feb., 1986) had conclusively determined the issue between the parties and is binding and would operate as res judicata. So far as third question is concerned, the AO had found that there was no material to hold that the company had gone into liquidation. The CIT(A) in the proceedings under s. 263 has also not found that the company had gone into liquidation. On the other hand, it had proceeded on the basis of the decision of the Bombay High Court in Manik Dattatreya Lotlikar (supra). Therefore, there was no error in fact on the question of the company having been gone to liquidation, in order to bring the question within the scope and ambit of the principle for review. The allegation that the decision in Manik Dattatreya Lotlikar (supra) was not considered by the Division Bench in its order dt. 12th June, 2000, and had proceeded on the basis of the Kerala decision does not seem to be correct as has been sought to be pointed out by Mr. Prosad. The Division Bench had proceeded simply on the basis of the decision in the earlier proceedings between the parties that operate as res judicata. Therefore, even no question of mistake in law does seem to be apparent from the record. With regard to the allegation that the Court had delivered the judgment without waiting for the written submission submitted by Mr. Prosad, there is nothing on record to substantiate such a situation. Mr. Prosad had attempted to rely on the affidavits filed after 12th of June, 2000. But while considering such a question, the Court cannot look into any materials, which were not brought on record on the date when the order was passed. There is nothing in the order- sheet to show that the Court would be waiting to deliver the judgment after having reserved the same till the written notes are submitted and that there would be a further hearing on the question. Unless it is borne out by the record, the Court is helpless in a proceeding for review. The review is concerned only on the basis of an error
apparent from the record. It cannot enter into a process of taking evidence to establish something, which is not on record in order to create records for the purpose. The Court is not supposed to entertain such statements in review. If such questions are entertained, it would open a Pandora’s box and lead to great anomalies, which is undesirable. Even then the allegation that in the absence of the written notes, the Court had omitted to take note of the decision in Manik Dattatreya Lotlikar (supra) is also wholly unfounded. Inasmuch as the Court had taken note of the said decision, but had held having regard to the facts and circumstances of the case and the situation in law on the basis of admitted facts, the said decision had no manner of application. Therefore, the first submission of Mr. Prosad cannot be sustained.
Thus, we do not find any ingredient in the present case in order to admit the application for review in the absence of any ground, which Mr. Prosad could establish. None of the ground taken in the petition conforms to the grounds available in review. We, therefore, are not inclined to admit this review application. The review application is, therefore, dismissed. No order as to costs.
R.N. Sinha, J. : I agree.
[Citation : 263 ITR 52]
