Sunil Vasudeva v. Sundar Gupta (2019) 415 ITR 281 / 180 DTR 289 / 309 CTR 457 / 267 Taxman 100 (SC)
Section 293 of the Income Tax Act,1961-provides that no suits in any civil court shall be filed to set aside any order made, proceedings or action taken by the department or any officer of the government or anything done in good faith.
The Supreme Court in above-referred matter held that there was no error committed by the High Court in its judgment rendered in the exercise of its review jurisdiction calling for interference. Decision of the Calcutta High Court affirmed.
The present appeal is being filed against the impugned judgment dated 24th September, 2014 passed by the High Court of Calcutta in RVW No. 272 of 2012 recalling the Order dated 19th October, 2012 and while setting aside the order dated 31st March, 2006 restoring the Writ Petition No. 18500(W) of 1985.
The mandate of law remained unnoticed by the single judge of the Calcutta High Court on October 26, 1990 while relegating the parties to address in the pending civil suit at Delhi although it was dismissed much prior to the pronouncement of the judgment dated October 26, 1990.
Even in the appeal, the Division Bench granted liberty to the respondents to file a fresh civil suit in respect of the subject property in Delhi and neither party had brought to the notice of the court the mandate of law as envisaged under section 293 of the Income-tax Act, 1961 that a civil suit against the Income-tax Department was not maintainable under the law.
The High Court took notice of this in its review jurisdiction when it arrived at the conclusion that there was an error apparent on the face of the record and consequently allowed the application for review, recalled the order dated October 19, 2012 and set aside the judgment and order dated March 31, 2006 passed in the miscellaneous application and for restoration of the writ petition to be heard on its own merits.
The effect of S. 293 of the Act had been mistakenly omitted under the judgment in review.
That apart, the effect of the order of the High Court on the Department’s application in the 1957 suit was open to examination in the writ proceedings as it was the defence of the Department in the reply to the review application and before the court that in the auction sale which was held in the month of August, 1964, permission of the court was not obtained.
After the order was passed on the Department’s application by the single judge of the High Court in the 1957 suit, it would certainly affect the auction sale held by the Department in reference to the subject property in question.
If the civil suit was not maintainable in view of section 293 of the Act and this was the purported defence of the respondents and of the Department and consequential effect of the order dated September 8, 1965, no party could be left remediless and the grievance raised before the court of law, had to be examined on its own merits.
There was no error committed by the High Court in its judgment rendered in exercise of its review jurisdiction calling for interference.
THE DECISION OF THE CALCUTTA HIGH COURT WAS AFFIRMED.
THE APEX COURT made it clear that its observations were only for the purpose of disposal of the appeal and the writ petition was to be decided by the High Court of Calcutta on its own merits, after hearing the parties, in accordance with law.
The cases in which the review application could be entertained are :
- 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 ;
- mistake or error apparent on the face of the record ;
- any other sufficient reason.
A review will not be maintainable in the following cases :
- repetition of old and overruled argument ;
- minor mistakes of inconsequential import.
Review proceedings cannot be equated with the original hearing of the case. A review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. The mere possibility of two views on the subject cannot be a ground for review. The error apparent on the face of the record should not be an error which has to be fished out and searched.
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. A review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.
CONCLUSION
The Supreme Court in above judgment clarified that a Civil Court has right to accept review petition if there was an error apparent on the face of record. The provisions of Section 293 prohibits any suit or proceedings against any order, proceedings or action taken by the department or any officers in good faith but in case the order or proceedings or actions taken by the department or any officer of the government then the remedies against such order, proceedings or actions should be reviewed by the Civil Court.
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Footnotes
SECTION 260 OF THE INCOME TAX ACT, 1961 - Decision of High Court or Supreme Court on the case stated;
(1) The High Court or the Supreme Court upon hearing any such case shall decide the questions of law raised therein, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and a copy of the judgment shall be sent under the seal of the court and the signature of the Registrar to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such judgment.
(2) The costs of any reference to the High Court or the Supreme Court which shall not include the fee for making the reference shall be in the discretion of the court. D.- Appeals to the Supreme Court.
APPEAL TO HIGH COURT
SECTION 260A OF THE INCOME-TAX ACT, 1961
(1) An appeal shall lie to the High Court from every order passed in appealby the Appellate Tribunal before the date of establishment of the National Tax Tribunal, if the High Court is satisfied that the case involves a substantial question of law.
(2) The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be—
(a ) filed within one hundred and twenty days from the date on which the order appealed against is received by the assessee or the Chief Commissioner or Commissioner;
(b ) [***]
(c ) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved.
(3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question :
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.
(5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit.
(6) The High Court may determine any issue which—
(a) has not been determined by the Appellate Tribunal; or
(b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1).
(7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.
SECTION 293 OF THE INCOME TAX ACT,1961
Bar of suits in civil courts- No suit shall be brought in any civil court to set aside or modify any proceeding taken or order made under this Act, and no prosecution, suit or other proceeding shall lie against the Government or any officer of the Government for anything in good faith done or intended to be done under this Act.
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