Ferdino I. Rebello, J.:— There is a delay of 36 days in preferring review petition. There is an affidavit in support of the motion by Premanand J. ACIT showing cause.
On the other hand, on behalf of the respondents, their learned counsel has drawn our attention to the order in Notice of Motion No. 787 of 2009 in Income Tax Appeal (L) No. 3592 of 2008 decided on 8-7-2009 where relying on the judgment of the Supreme Court this Court has taken a view that in an appeal preferred under section 260A of the Income Tax Act, there is no power to condone delay. In our opinion, the judgment is clearly distinguishable. Insofar as appeal is concerned, the appeal is conferred by Statute and it is in that context that the Court took a view that there is no power of condonation of delay.
3. The question before us is in the first instance, whether power of review has been conferred under the provisions of Income Tax Act, 1961. On behalf of the Review petitioner, the learned counsel draws our attention to the provision of section 260A of the Income Tax Act, which reads as under:
“260A. (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal 1[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) 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 3[received by the assessee or the Chief Commissioner or Commissioner];
(b) 4[***];
(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).
5[(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.]”
(Emphasis supplied).
Relying on these provisions it is submitted that once the provisions of Code of Civil Procedure pertaining to appeals is made applicable to appeal, the power of review which is conferred by the Code of Civil Procedure must also be so read.
4. The Code of Civil Procedure has distinct provisions insofar as appeal and review are concerned. Similarly section 96 is the provision pertaining to first appeals. Section 100 pertains to Second appeals and section 114 is a power of review. Order 41 provides for First appeal. Order 47 provides for Review. In other words, there are distinct provisions in the Code of Civil Procedure pertaining to appeals and Review. In that context, section 260A(7) has to be read to mean the provisions pertaining to appeal and not provisions pertaining to review.
5. The settled law is that the power of review must be specifically conferred. The Supreme Court in Grindlays Bank Limited v. Central Government Industrial Tribunal, 1980 Supp SCC 420 has made a clear distinction between substantive review and procedural review. Substantive review must be conferred whereas procedural review is inherent in every Court or Tribunal. This is what the Court observed:
“… The expression “review” is used in the two distinct senses, namely (1) a procedural review, which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the fact of the record. It is in the latter sense that the Court in Patel Narshi Thakershi case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process and such power inheres in every Court or Tribunal.”
Thereafter that view has been reiterated in J.K Synthetics Ltd. v. Collector Of Central Excise., 1996 (86) E.L.T 472 (SC). This view has been reiterated by this Court in Chandrakant Butalal Shah v. Union of India in Writ Petition No. 1505 of 2007 decided on 6th August, 2007. Considering the above, we are clearly of the opinion that the power of substantive review having not been conferred under the Income Tax Act, the review as filed is not maintainable. Once the Review is not maintainable, the question of considering whether there is sufficient cause does not arise. In the light of that, Review Petition along with Notice of Motion dismissed.
Review dismissed.