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Jose T. Mooken v. Commissioner Of Income Tax
Structured Summary of the Opinion (Chandrasekhara Menon, J.)
Factual and Procedural Background
The petitioner sought review of this Court's judgment in ITR No. 84 of 1974 (a reference disposed of along with OP No. 5119 of 1974), in which the Court answered a question in favour of the Revenue and against the assessee. The Court had held that the Appellate Tribunal was correct in holding that proceedings taken against the legal representatives of the deceased M.O. Thomakutty were valid, relying on the decision in Westminister Bank Ltd. v. Riches (1947 28 Tax Cases 159).
The petitioner filed an application described in the opinion as being under Order 47 Rule 1 and Section 151 of the Code of Civil Procedure, read with Section 260 (the text contains a typographical rendering) of the Income-tax Act, 1961, seeking review of the High Court's earlier reference-judgment. The Court proceeded to consider whether such an application would lie in the context of a reference under Section 256 of the Income-tax Act, 1961.
Legal Issues Presented
- Whether an application for review filed under Order 47 Rule 1 and Section 151 of the Code of Civil Procedure (read with provisions of the Income-tax Act as invoked by the petitioner) is maintainable against a judgment delivered by the High Court in a reference under Section 256 of the Income-tax Act, 1961.
- Whether the High Court, when functioning in its advisory/consultative jurisdiction under the Income-tax Act, can exercise inherent powers (including powers to review or to rectify non-clerical errors) akin to those it exercises when functioning as a civil court governed by the Civil Procedure Code.
Arguments of the Parties
Revenue's Arguments
- The Revenue contended that no review application under Order 47 Rule 1 CPC would lie against a judgment delivered by the High Court in a reference under Section 256 of the Income-tax Act, 1961.
- It was submitted that Section 256(1) of the Income-tax Act prescribes a special procedure for references from the Appellate Tribunal to the High Court, and that the High Court's role in deciding such references is not that of a civil court exercising ordinary Civil Procedure Code remedies; therefore, there is no statutory provision conferring a power of review.
- The Revenue relied on precedents (including the Privy Council decision in Commissioner of Income-Tax, United Provinces v. Tehri-Garhwal State and the Nagpur High Court decision in Seth Mathuradas) to support the proposition that a High Court's answer in a reference is binding between the parties in that case and that mistakes in such answers (other than clerical slips) must be corrected by appeal, not by review.
Petitioner's Arguments
- The petitioner argued that where a reference is made to a court "established by law" the procedure of that court should govern the matter, and thus the High Court's procedural incidents (including review powers) should apply.
- Counsel relied on authorities (including National Sewing Thread Co. Ltd. v. James Chadwick and Bros. Ltd. and other Privy Council and Supreme Court decisions) for the proposition that when a statute directs that a matter be referred to an established court, the ordinary incidents of that court's procedure attach to the matter brought before it.
- The petitioner also relied on authorities (including the Full Bench decision in K. Ahamad v. Commissioner of Income-Tax, Kerala) to stress that the High Court has inherent powers to correct accidental slips or omissions in a judgment and that the Court should be able to delete or rectify sentences that arose from accidental error to prevent injustice.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court (as stated in the opinion) |
|---|---|---|
| Westminister Bank Ltd. v. Riches (1947 28 Tax Cases 159) | Authority relied upon by the Tribunal to uphold proceedings against legal representatives of a deceased assessee. | The Court noted that the Tribunal had relied on this decision and was right in holding the proceedings against the legal representatives of M.O. Thomakutty valid. |
| Commissioner of Income-Tax, United Provinces v. Tehri-Garhwal State (1934) 11 ITR 1 (Privy Council) | The judgment of the High Court in a reference is binding between the parties in that particular case; if the judgment contains a wrong construction, an appeal was the available remedy and there is no other procedure to correct it. | The Revenue relied on this to contend that the High Court does not exercise civil court powers in the reference context and thus a review is not available; the Court applied the principle to hold that mistakes other than clerical or accidental errors must be corrected by appeal. |
| Seth Mathuradas v. Commissioner of Income Tax, C.P. and U.P. (1940) 8 ITR 412 (Nagpur High Court) | An application for review of a judgment passed in a reference under Section 66 (corresponding to present Section 256) is not maintainable because the Tribunal's reference does not operate as a civil court proceeding governed by the CPC. | The Court referred to and agreed with the view that the High Court, when acting under the Income-tax reference provisions, exercises a special jurisdiction and the proceedings are not governed by the Civil Procedure Code; this supported dismissal of the review application. |
| Emperor v. Kajori Mal Kalyan Das (4 ITC 60) | Holds that such opinions/answers in reference are not decrees or orders and thus review is not available. | Cited (via the Nagpur decision) as support for the principle that review does not lie in respect of judgments in references under the tax statutes. |
| Commissioner of Income Tax, Bengal v. Hungerford Investment Trust Ltd. (1935) 3 ITR 188; 62 Cal. 671 | When the High Court acted under Section 66 of the Income-tax Act it exercised special jurisdiction not governed by the CPC; no review lay. | Referred to by earlier decisions as establishing that the Civil Procedure Code does not govern the High Court's proceedings in tax references, supporting the non-availability of review. |
| K. Ahamad v. Commissioner Of Income-Tax, Kerala (1974) 96 ITR 29 | High Court exercised inherent jurisdiction to delete or rectify a sentence in its answer to a reference that had resulted from an accidental slip or omission; S.151 and Order XLVII CPC were discussed but the Court recognized an inherent power to correct accidental errors. | The opinion described and discussed this Full Bench decision at length. The Court acknowledged the view that the High Court has inherent power to correct accidental slips but distinguished that such power does not extend to exercising a substantive review of a reference judgment where no statutory power of review exists. |
| Master Construction Co. (P) Ltd. v. State of Orissa (Supreme Court) | Defines/delineates the ambit of the words "accidental slip or omission" in a judgment. | Invoked in discussion of K. Ahamad; the Court noted the delineation but held that inherent power to correct accidental slips does not equate to a power to review substantive aspects of a reference judgment absent statutory authority. |
| National Sewing Thread Co. Ltd. v. James Chadwick and Bros. Ltd. AIR 1953 SC 357 | When a statute directs that an appeal or reference shall lie to an established court, the appeal/reference must be regulated by the practice and procedure of that established court. | Relied upon by the petitioner to argue that the High Court's ordinary procedural incidents attach to references; the Court considered the principle but concluded that the special/advisory nature of the Income-tax reference jurisdiction limits application of CPC remedies such as review. |
| National Telephone Co. Ltd. v. Postmaster-General (1913 A.C. 546) | Where a question is referred to an established court, ordinary incidents of that court's procedure attach. | Quoted (through earlier authority) in support of the petitioner's procedural argument; the Court examined but did not accept that this principle alone confers review power in the special income-tax reference context. |
| Adaikappa Chettiar v. Chandrasekhara Thevar (AIR 1948 PC 12) | Where ordinary courts are seized of a dispute they are governed by ordinary rules of procedure and an appeal would lie under such rules notwithstanding a special statute. | Cited by the petitioner to support the contention that ordinary procedural rights attach to matters before the High Court; the Court considered but limited this principle in light of the special nature of tax reference jurisdiction. |
| Secretary of State for India v. Chellikani Tama Rao (AIR 1916 P.C. 21) | Ordinary rules of the Civil Procedure Code apply where proceedings reach ordinary courts in India. | Cited by the petitioner as supportive authority; the Court evaluated the principle but held that the advisory nature of Income-tax references constrains application of CPC review provisions absent statutory conferment. |
| The Collector, Varanasi v. Gauri Shanker Misra (1967) 2 S.C.W.R 697 | When the High Court decides an appeal under certain statutory provisions it functions as a 'Court' and the decision is a 'determination', making it amenable to further supervisory jurisdiction (e.g., Supreme Court under Article 136). | Relied upon by the petitioner to show that the High Court can be treated as a 'Court' in some statutory contexts; the present Court noted the decision but confined its application, observing the special/advisory nature of Income-tax references. |
| L. Bansi Dhar & Sons v. The Commissioner of Income-Tax (1978) 111 ITR 330 (Delhi High Court) | Held that in a reference under Section 66/256 the High Court has inherent jurisdiction or power to stay recovery of tax pending disposal of the reference; inherent jurisdiction is unrelated to the nature of the jurisdiction (advisory or otherwise). | Presented by the petitioner; the Court acknowledged the decision but, in its reasoning, emphasized that while inherent powers exist, the specific power of review is not conferred on the High Court in reference matters unless expressly given. |
| Roop Narain Ramachandra (P.) Ltd. v. Commissioner of Income-tax (Allahabad) | Expressed view that Section 151 CPC has no application when the High Court functions in its advisory jurisdiction answering questions referred under the Income-tax Act. | The opinion mentioned this view (noting disagreement with it regarding inherent jurisdiction) and nevertheless concluded that review power cannot be exercised by the High Court in a reference under the Income-tax Act absent express conferment. |
Court's Reasoning and Analysis
The Court examined the nature of the jurisdiction exercised by the High Court when answering a reference under Section 256 of the Income-tax Act (corresponding to Section 66 of the earlier statute). It characterized this jurisdiction as special and advisory or consultative in nature, not as original, appellate or revisional jurisdiction.
The Court reviewed the competing authorities and submissions:
- It accepted the premise (advanced by the petitioner) that generally when a statute refers matters to a court established by law, the procedure of that court generally governs the conduct of the matter. The Court recognized precedents establishing that ordinary incidents of court procedure attach when matters are before an established court.
- However, the Court emphasized that the specific nature of the jurisdiction conferred by the Income-tax reference provisions must be taken into account. The reference jurisdiction is advisory; the High Court's decision is to be sent to the Appellate Tribunal to enable the Tribunal to dispose of the case conformably with the High Court's answer.
- The Court relied on the Privy Council decision in Tehri-Garhwal State to the effect that the High Court's judgment in such a reference is binding between the parties in that case and that if the judgment contained an erroneous construction, the remedy was appeal — there was no other procedural device to correct it. This principle was used to highlight the absence of any statutory procedure for review of reference answers.
- The Court considered the Full Bench decision in K. Ahamad (where the High Court had deleted a sentence that had crept into its answer because of an accidental slip) and acknowledged that courts have inherent powers to correct accidental slips or clerical errors. The Court accepted that such inherent power exists in a court of record like the High Court for the limited purpose of removing errors arising from accidental slips or omissions, because "no act of a court shall ever injure a party."
- Nevertheless, the Court made a clear distinction between correcting clerical or accidental slips and exercising a substantive review to revisit or alter the legal conclusion embodied in an answer to a statutory reference. The Court held that the power of review (as understood under Order XLVII CPC or otherwise) is not conferred on the High Court in the matter of a reference under the Income-tax Act unless expressly provided by statute.
- On the combined weight of the statutory scheme, the Privy Council authority, and earlier High Court decisions (including Nagpur), the Court concluded that an application invoking the Civil Procedure Code power of review (Order 47 Rule 1) could not properly be invoked to re-open a reference answer delivered under Section 256; the High Court could not exercise that civil-review power in the jurisdiction conferred by the Income-tax Act.
In short, while the High Court retains inherent power to correct clerical or accidental slips, it cannot, in the reference context under the Income-tax Act, exercise a general power of review of its answer unless such power has been expressly conferred by statute.
Holding and Implications
Holding:
The petition for review is not maintainable and is dismissed.
Implications:
- Direct effect: The petitioner's application for review of the High Court's answer to the reference (ITR No. 84 of 1974) was dismissed and the Court made no order as to costs.
- Legal principle affirmed by the Court: In the context of a statutory reference under Section 256 of the Income-tax Act, the High Court exercises a special/advisory jurisdiction. Apart from the limited inherent power to correct clerical or accidental slips or omissions in its judgments, the High Court does not, in that reference jurisdiction, possess a statutory power to entertain review applications under the Civil Procedure Code (Order XLVII) in order to re-open substantive conclusions reached in the answer; substantive mistakes or erroneous constructions are to be corrected by appeal if statute permits.
- No broader procedural innovation was announced by the Court; the decision confines itself to the statutory scheme and to distinguishing the limited inherent power to rectify accidental slips from a general power of review.
Disposition: Dismissed. (No order as to costs.)
Chandrasekhara Menon, J.:— In this application the petitioner prays for review of the Judgment of this Court in ITR. No. 84 of 1974. That reference application had been disposed of along with OP. No. 5119 of 1974. We had answered the question referred to us in the ITR. in the affirmative, that is in favour of the department and against the assessee. We had pointed out therein that the Tribunal was right in holding that the proceedings taken against the legal representatives of deceased M.O Thomakutty were valid relying on the decision in Westminister Bank Ltd. v. Riches (1947 28 Tax Cases 159). In the application for review various contentions have been raised. Before adverting to these contentions we would have to consider whether an application which the petitioner has filed under Order 47 Rule 1 and S. 151 CPC. road with S. 260 of the Income Tax Act, 1961 would lie.
2. The learned counsel for the Revenue opposing the application would urge that no such application would lie. He points out that under S. 256(1) of the Income Tax Act, 1961 the assessee or the Commissioner may require the Appellate Tribunal by an application in the prescribed form, to refer to the High Court any question of law arising out of such order of the Appellate Tribunal under S. 254. If the Appellate Tribunal is satisfied that a question of law arises, it may draw up a statement of the case and refer it to the High Court. If the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the Commissioner, as the case may be, within the time stipulated in the provision may apply to the High Court and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it and on receipt of such requisition, the Appellate Tribunal shall state the case and refer it accordingly. After the High Court takes a decision on the question, a copy of the judgment in the matter will have to be sent under the seal of the court and 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. What the learned counsel for the Revenue contends is that the relevant provision is indicative of the fact that the High Court is not exercising the power in the matter as a civil court as such and no question of a review of the decision rendered by the High Court would arise in the face of the fact that there is no specific statutory provision empowering the court to review its order. In this connection reference was made to the decision of the Privy Council in Commissioner of Income-Tax, United Provinces v. Tehrigarhwal State (1934) 11 ITR. 1. In that case Tehri-Garhwal State had been made liable to taxation by the Income-tax authorities for the revenue years 1926-1927 upon the profits of timber business. Income-tax was levied from the State under S. 3 of the Indian Income Tax Act, 1922. From the first the State had contested its liability to taxation. It appealed from the original assessing authority to the Commissioner and from the Commissioner, upon a reference made by him under S. 66(2) of the said Act to, the High Court of Allahabad. The High Court hald on the questions referred to it that none of the grounds taken by the State were tenable and the questions were answered in favour of the Revenue. By the time this judgment was delivered it had apparently been ascertained that the State had in fact no taxable income in the year 1926-1927. A part payment of Rs. 25,000/- had been made by the State before the referenpp, which left a balance of Rs. 18,294-14-0 due upon the demand of the Income-tax authorities. The state, claimed the return of Rs. 25,000/- on the ground that it had no taxable income in the year 1926-1927, whilethe Commissioner with equal confidence claimed payment of Rs. 18,294-14-0. A second reference was thereupon made to the High Court by the Commissioner on his own motion asking for the determination of the following questions:—
“(1) Does the judgment delivered by the High Court in Miscellaneous Case No. 671 of 1929 on November 21, 1929, operate of its own force to require the Income Tax Department to refund the sum of Rs. 25,000 paid by the Tehri Darbar, and to refrain from collecting the balance of Rs. 18,294-14-0?
(2) if the answer to question (1) is in the negative:—
(a) Is the Tehri Darbar liable to pay the balance of Rs. 18,294-14-0?
(b) Is the Tehri Darbar entitled to a refund of the amount already paid, i.e Rs. 25,000?”
3. The High Court (the same Judges who heard the previous case heard the second reference also) answered the first quostion in the affirmative and held that the State was not liable to pay the balance of Rs. 18,294-14-0 and that it was entitled to a refund of Rs. 25,000/- already paid. The Commissioner appealed to the Privy Council. The Privy Council accepting the contention of the Commissioner said that though they might be prepared to endorse the view taken by the Calcutta High Court as to the true meaning of S. 3 of the Act of 1922, the former judgment of November 21, 1929 rendered by the High Court had not been appealed against and whether right or wrong must govern the relations of the parties in the particular case. The Privy Council further observed:—
“It is to be noticed that under S. 66(5) of the Act of 1922, the judgment of the High Court is to contain the grounds upon which the decision is founded: that a copy of the judgment is to be sent to the Commissioner; and that the case isto be disposed of by the income tax authorities conformably to such judgment. Under this provision their Lordships think that the judgment as a whole is binding between the parties in the particular case. If the judgment expounded a wrong construction of the Act, as the appellant now contends, an appeal against it was open, and there is no other procedure by which it could be corrected.”
4. Another decision that was relied on by the learned counsel for the Revenue is of the Nagpur High Court in Seth Mathuradas v. Commissioner of Income Tax C.P and U.P (1940) 8 ITR 412. There a Division Bench of the Nagpur High Court consisting of Chief Justice Stone and Justice Vivian Bose: (as he then was) had held that an application for review of the judgment passed in a reference under S. 66 of the Indian Income-tax Act, 1922 is not maintainable, for a Tribunal which determines the questions referred under that Section does not operate as a Civil Court so as to attract the provisions of the Civil Procedure Code. The Nagpur High Court refers to a decision of the Allahabad High Court in Emperor v. Kajori Mal Kalyan Das…Opposite Party. 4 ITC. 60 where it had been held that for the reason that this kind of an opinion is not a decree or order there could be no review of such a judgment Another case that is referred to by the Nagpur High Court in the decision aforementioned is that of the Calcutta High Court in Commissioner of Income Tax, Bengal v. Hungerford Investment Trust Ltd. (1935) 3 ITR. 188; 62 Cal. 671 where it had been held tljat the Court when acting under the powers conferred by S. 66 of the Indian Income Tax Act, 1922 was exercising a special jurisdiction and that its proceedings were not governed by the Code of Civil Procedure and that no review lay.
5. Mr. Ravindranatha Menon, learned counsel for the Revenue also placed before us the decision of a Full Bench of this Court in K. Ahamad v. Commissioner Of Income-Tax, Kerala, Kerala (1974) 96 ITR. 29. The facts of the case as clearly summarised in the Head Notes in the Reports are as follows:—
“For the assessment year 1963-1964, the petitioner filed his return on September 8, 1966. The income returned was less than 80 per cent, of the total income assessed. Penalty proceedings were started by the Income-tax Officer and referred to the Inspecting Assistant Commissioner. That officer held that the assessee had not rebutted the presumption laid down in the Explanation to S. 27(1)(c) of the Income-tax Act, 1961, and levied penalty. On appeal, the Appellate Tribunal held that as the assessment year, was 1963-1964 and as the said Explanation to S. 271(1)(c) was introduced subsequent to that assessment year, the Explanation was not applicable as it had no retrospective effect. At the instance of the revenue, the Tribunal referred to the High Court the question whether the Tribunal was correct in law in holding that the Explanation to S. 271(1)(c) was not applicable to the case. In answering the reference, the Court observed: ‘The income returned was, therefore, less than 80 percent of the total income assessed. The Explanation to S. 271(1)(c) was thus directly attracted…………The act of furnishing inaccurate particulars had taken place after the amendments were introduced in the section. Imposition of penalty by the Inspecting Assistant Commissioner, was therefore, justified…………The year of assessment has nothing to do with the question of liability arising under S. 27(1)(c) of the Income-tax Act, 1961. And to apply the section as amended to an act committed after the amendment is not to give fhe section retrospective effect. The only question is whether the elements of the section had been satisfied when the act was committed.” The petitioner applied to the court under S. 256 of the Income-tax Act, 1961, and S. 151 of the Code of Civil Procedure praying for the deletion in the said judgment of the sentence ‘Imposition of penalty by the Inspecting Assistant Commissioner was, therefore, justified or to clarify it:”
6. Chief Justice Govindan Nair speaking for the court pointed out that in the answer to the reference what had been held was that in the circumstances of the case for the year of assessment 1963-1964, the Explanation was applicable. That was all that was meant and said. But unfortunately a sentence had crept in due to an accidental slip or omission or carelessness. It was not decided that the assessee was liable to be penalised. The learned Judge further said:—
“The sentence must disappear from the judgment in the interest of justice for which alone courts have been constituted and we consider not only that it is our right to do so, but our imperative duty to delete that sentence from the judgment. We know no law which precludes us from doing so. The Judicial Committee of the Privy Council said long years ago that Courts are constituted for the purpose of doing justice, that it is inherent in their discharge of functions that they must have the powers akin to what we propose now to exercise for removing any wrong impression that may arise if the sentence is read torn from the context. The Supreme Court in its decision in Master Construction Co. (P) Ltd. v. State of Orissa has clearly, if we may say so with great respect, delineated the ambit of the meaning of the words ‘accidental slip or omission’ arising in a judgment. That S. 152 of the Code of Civil Procedure is inapplicable, S. 151 is also inapplicable, that this court in exercising a jurisdiction quasi-judicial in nature in answering a question referred to us at the instance of the assessee or the department and so we have no inherent powers arising from these provisions even accepted cannot be a ground for rejecting the prayer in the petition. The power we think we have is apart from the sections. S. 151 of the Code of Civil Procedure does not confer any inherent power on a court. The section only saves that power. The power was there even without the section particularly in a court of record which a High Court is and apart from the section what inherent power existed exists now and we have no doubt that as long as we follow the system of jurisprudence we have been following the law will continue to make that power available. Errors can creep in and there can be omissions and if there are accidental errors or omissions, we conceive that we have the jurisdiction to correct those errors and rectify those ommissions. The principle is that no act of a court shall ever injure a party.
We have been referred by counsel for the department to three decisions, the earliest of which is in Commissioner of Income-tax v. Tehri-Garhwal State 1. A passage from page 8 had been quoted for the proposition that if this court has construed a statute in a particular manner in answering a question referred to it by the Income-tax Appellate Tribunal, that construction cannot be replaced by another even if the court is satisfied that the earlier construction laid on it is erroneous. What the court in that case was ordered to do was to reverse the decision taken by the court for which of course this court has no jurisdiction that is not the matter before us and we do not think that the decision has any application. Similarly the decision in Seth Mathuradas v. Commissioner of Income-tax 2 lays down the same proposition. The provision for review contained in Order XLVII of the Code of Civil Procedure will not apply in reviewing a judgment answering questions referred to this court under S. 256 of the Act and will be of no assistance in deciding this case. The Allahabad High Court in the decision in Roop Narain Ramachandra (P.) Ltd. v. Commissioner of Income-tax 3 has expressed the view that S. 151 of the Code of Civil Procedure has no application when this court functions in its advisory jurisdiction in answering questions referred to it under the Income-tax Act. With utmost respect we are unable to accept this proposition. The question really is not whether S. 151 in terms would apply or not. As we indicated earlier this court has the inherent jurisdiction to correct errors and omissions arising from accidental slips. We have no doubt that this inherent power exists in the court from the very nature of its constitution and purpose. It is paramount that courts must do justice and if any errors arising from accidental slips or omissions creep into judgments, which can result in injustice, such errors must be removed.” (Underlining ours).
7. Mr. T.L Viswanatha Iyer appearing for the petitioner on the other hand would lay stress on the fact that as per the statutory provisions the reference by the Tncome-tax Appellate Tribunal is to a court established by law. The procedure in that court should govern the matter. The right of review would therefore be implicit. It might be noted that in National Sewing Thread Co. Ltd., Chidambaram v. James Chadwick and Bros. Ltd. AIR. 1953 SC. 357 Justice Mahajan (as he then was) who was speaking for the Supreme Court, in considering S. 76(1) of the Trade Marks Act, 1940 which provides that an appeal would lie from any decision of the Registrar of the Trade Marks Act to the High Court having the jurisdiction, had said that though the Trade Marks Act does not provide or lay down any procedure for the future conduct or career of that appeal in the High Court, obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that court and in accordance with the provisions of the charter under which that court is constituted and which confers on it power in respect of the method and manner of exercising that jurisdiction. The learned Judge had said that the rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. The learned Judge had referred to the observations in National Telephone Co. Ltd. v. Postmaster-General 1913 A.C 546 made by Lord Chancellor Viscount Haldane where it was said that when a question is stated to be referred to an established court without more, it imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision likewise attaches. The same principle had been expressed by the Privy Council in Adaikappa Chettiar v. Chandrasekhara Thevar AIR 1948 PC. 12. That decision stated that where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal would lie if authorised by such rules notwishstanding that the legal right claimed arises jindera special statute which does not in terms confer a right of appeal. The learned Judge had also referred to the decision in Secy. of State for India v. Chellikani Tama Rao AIR. 1916 P.C 21 where it was observed thus:
“It was contended on behalf of the appellant thal all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the Statute just quoted. In their Lordships' opinion this objection is not well-founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country with regard to whose procedure, orders and decrees the ordinary rules of the Civil Procedure Code apply.”
8. In the decision in The Collector, Varanasi v. Gauri Shanker Misra (1967) 2 S.C.W.R 697, Justice Hegde speaking for the Supreme Court had said that in deciding an appeal under S. 19(1)(f) of the Defence of India Act, 1939, against an order of an arbitrator, the High Court functions as a ‘Court’ and not as a designated person and the decision by the High Court is a ‘determination’. Therefore, it is within the competence of the Supreme Court to grant special leave under Art. 136 of the Constitution against such a decision.
9. Mr. Viswanatha Iyer has also brought to our notice a decision of the Delhi High Court in L. Bansi Dhar & Sons…Petitioners v. The Commissioner Of Income-Tax… (1978) 111 ITR. 330 where the Division Bench of that court had said that in a reference to the High Court under S. 66 of the Indian Income Tax Act, 1922, or S. 256 of the Income-tax Act, 1961, the High Court has inherent jurisdiction or power to stay, in a proper case, the recovery of the tax pending the disposal of the reference. It is well settled that the High Court, as a ‘court’, has inherent jurisdiction to act exdebito justitiae if the circumstances of a case so demand. The inherent jurisdiction or power is inherent in the High Court, because it is a ‘court’, and is unrelated to and independent of the nature of its jurisdiction advisory, consultative, original, appellate or revisional, in the case before it.
10. We might point out that the jurisdiction of the High Court in a reference under S. 256 of the Income tax Act, 1961 is a special jurisdiction, advisory or consultative in nature and not original, appellate or revisional jurisdiction. Though it is well settled that the High Court as a ‘court’ has inherent jurisdiction to act ex debito justitiae if the circumstances of a case so demand and such inherent jurisdiction or power is inherent in the High Court because it is a court and is unrelated to and independent of the nature of its jurisdiction, in regard to the power of review unless it is expressly conferred, that cannot be so exercised. The power of review is not conferred on the High Court in the matter of a reference under the Income-tax Act. In the absence of specific conferment of power it is too much to say that the High Court could exercise that power. Exercising of the review power cannot - be in the exercise of an inherent power as Chief Justice Govindan Nair so clearly pointed out in K. Ahamad v. Commissioner Of Income-Tax, Kerala, Kerala (1974) 96 ITR. 29. The High Court exercising inherent power in a reference under the Indian Income-tax Act, acts there independent of the powers conferred under the Civil Procedure Code. We are in agreement with the view expressed by the Nagpur High Court as early as in 1940 in 8 ITR. 412 that the court when acting under the powers conferred by S. 66 of the Income-tax Act, 1922 (corresponding to present S. 256 of Act of 1961) was exercising a special jurisdiction and that its proceedings were not governed by the Code of Civil Procedure. In the present application for review what is sought to be corrected is not a mere clerical or accidental error. The petitioner is invoking the powers of a Civil Court under Order 47 Rule 1 CPC. In the jurisdiction conferred on it the High Court cannot exercise that power.
11. The principle that when a matter comes to the High Court, the procedure that is followed thsre would apply does not mean in the context oj the proceedings under the Indian Income-tax Act that the provisions of the Civil Procedure Code would apply as such. One would have to take into account the nature of the jurisdiction that the High Court is exercising in the matter. As pointed out earlier in the case of reference under the Income-tax Act the High Court is exercising an advisory or consultative jurisdiction. The copy of the decision rendered by the High Court is to be forwarded to the appropriate forum functioning under the Income tax Act for enabling that Tribunal to dispose of the case in conformity with the High Court's decision. As the Privy Council said in Commissioner of Income-tax, United Provinces v. Tehri Garhwal State (1934) 11 ITR. 1 the decision becomes binding as between the parties in the particular case. If the judgment expounded a wrong construction of the Act or made any mistake other than a clerical or accidental error an appeal against it was open. There is no other procedure by which such mistake could be corrected. We therefore hold that the petition for review is not rnaintainable and the same is dismissed. We make no order as to costs.
12. Dismissed.
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