1969-VIL-218-ALH-DT

Equivalent Citation: [1970] 75 ITR 646

ALLAHABAD HIGH COURT

Date: 05.08.1969

INCOME-TAX OFFICER, LUCKNOW

Vs

SB. SINGAR SINGH AND SONS AND ANOTHER.

BENCH

Judge(s)  : GANGESHWAR PRASAD., JAGDISH SAHAI.

JUDGMENT

The judgment of the court was delivered by

JAGDISH SAHAI J.-This special appeal is directed against the judgment of S. C. Manchanda J. dated August 21, 1964.

M/s. S.B Singar Singh and Sons (hereinafter referred to as "the assessee") were assessed to income-tax and excess profits tax for the accounting periods ending with March 31, 1945, and March 31, 1946, by means of the orders dated 26th August, 1949. The assessments were both under the Indian Income-tax Act and the Excess Profits Tax Act. In the excess profits tax appeals, the assessee took a specific ground before the Appellate Assistant Commissioner regarding adjustment of standard profits. The Appellate Assistant Commissioner dismissed the appeals by one judgment. Thereupon the assessee filed second appeals before the Income-tax Appellate Tribunal and, inter alia, took a definite plea with regard to the adjustment of standard profits. The two appeals in respect of excess profits tax assessment and the other two in respect of income-tax relating to the periods mentioned above were heard together and disposed of by one common judgment by the Tribunal. The assessee filed review applications in respect of the excess profits tax appeals on the ground that the Tribunal had not gone into the question of adjustment of standard profits. These applications were dismissed by the Tribunal. Thereafter, the assessee filed Writ Petition No.2810 of 1964 in this court. The main question involved in the writ petition was whether the Tribunal had jurisdiction to rehear the matter in view of the circumstance that, even though admittedly the assessee was entitled to the decision of the question regarding adjustment of the standard profits, the same had not been gone into by the Tribunal.

Manchanda J. allowed the writ petition and set aside the order of the Tribunal dated 9the July, 1956, by which it had dismissed the review application made by the assessee.

Mr. Gopal Behari, who has appeared for the income-tax department, has made the following two submissions:

1. That section 35 of Act 11 of 1922 was applicable to the proceedings under the Excess Profits Tax Act and inasmuch as that provision provides for a period of four year's limitation and the applications by the assessee were made after the expiry of that period, the applications were not competent.

2. That the learned single judge committed an error of law in holding that, in the circumstances of the present case, the review applications before the Tribunal were competent.

Admittedly, the following specific ground of appeal was taken in the two memorandum of appeals that were filed in respect of the excess profits tax assessments :

"Because the learned Excess Profits Tax Officer and the Appellate Assistant Commissioner have erred in not allowing to the assessee proper standard profits in accordance with the standard period subject to the adjustment on account of the increase and decrease of capital in the relevant chargeable accounting period, the view of the Income-tax Officer is wrong and untenable. The appellant was always prepared to file his computation of average capital. The lower court is not justified in refusing to give the benefit to the assessee on this account."

It is not disputed even by Mr. Gopal Behari that the aforesaid ground has substance and had to be considered by the Tribunal. It is also a matter of admission that the Income-tax Officer was required to determine proper standard profits in accordance with the standard period. Clearly the Tribunal ignored this aspect of the matter and disposed of the appeals before itself by saying :

"The excess profits tax appeals being consequential and the grounds in both these appeals being common, they are disposed of by this common order."

Admittedly in the Excess Profits Tax Act, there is no provision for a review application.

The short question before us is whether the Tribunal had inherent jurisdiction to rectify a wrong that it had inadvertently done to the assessee by not considering a very material ground and for that reason rehear the matter and do justice between the parties.

Before we record our conclusions in respect of this matter, we would like to notice sections 19 and 21 of the Excess Profits Tax Act, which read :

"19. Power of revision.-(1) The Commissioner may of his own motion call for the record of any proceedings under this Act which has been taken by any Excess Profits Tax Officer or Appellate Assistant Commissioner subordinate to him, and on receipt of the record may make such inquiry, or cause such inquiry to be made, and, subject to the provisions of this Act, may pass such orders thereon (including an order enhancing an assessment) as he thinks fit :

Provided that he shall not pass any order prejudicial to a person to whose business this Act applies without hearing him, or giving him a reasonable opportunity of being heard.

(2) On the coming into operation of Part II of the Indian Income-tax (Amendment) Act, 1939, sub-section (1) shall cease to have effect, but thereafter any Excess Profits Tax Officer or any person in respect of whose business an order under section 14 has been passed who objects to an order passed by an Appellate Assistant Commissioner under section 16 or section 17 may, within the prescribed time and in the prescribed manner, appeal against such order to the Appellate Tribunal constituted under the Indian Income-tax Act, 1922, and that Tribunal shall have all such powers in disposing of the appeal as it has in respect of appeals preferred to it under the Indian Income-tax Act, 1922," (Underlined by us).

21. Application of provisions of Act XI of 1922.-The provisions of sections 4A, 4B, 10, 13, 24B, 29, 36 to 44C (inclusive), 45 to 48 (inclusive) 49E, 49F, 50, 54, 61 to 63 (inclusive), 65 to 67A (inclusive) of the Indian Income-tax Act, 1922, shall apply with such modifications, if any, as may be prescribed, as if the said provisions were provisions of this Act and referred to excess profits tax instead of to income-tax, and every officer exercising powers under the said provisions in regard to income-tax may exercise the like powers under this Act in regard to excess profits tax in respect of cases assigned to him under sub-section (3) of section 3 as he exercises in relation to income-tax under the said Act :

"Provided that references in the said provisions to the assessee shall be construed as references to a person to whose business this Act applies."

We proceed to consider the submissions of Sri Gopal Behari seriatim.

Clearly section 35 is not included in section 21 of the Excess Profits Tax Act. If the legislature had intended that the provisions of that section should be made applicable to proceedings under the Excess Profits Tax Act, nothing prevented it from including it in section 21; when the legislature did include some of the provisions of Act 11 of 1922 in section 21 of the Excess Profits Tax Act, it clearly gave deliberate thought to the question as to which provisions of that Act should be made applicable to the proceedings under the Excess Profits Tax Act. That being so, if section 35 of Act 11 of 1922 is not included in section 21 of the Excess Profits Tax Act, the omission must be held to be deliberate.

Mr. Gopal Behari contends that, even though section 35 is not included in section 21 of the Excess Profits Tax Act, the words underlined by us in section 19(2) of the Excess Profits Tax Act clearly made the provision of section 35 applicable to proceedings under the Excess Profits Tax Act. The words underlined are "that Tribunal shall have all such powers in disposing of the appeal as it has in respect of appeals preferred to it under the Indian Income-tax Act, 1922". It is clear that these words have restricted application for the purposes of disposal of appeals. The proceedings for review commence after an appeal had been disposed of. In that sense they are post-appeal proceedings. What the words "shall have all such power in disposing of the appeal" mean is that the Tribunal while disposing of an appeal under Excess Profits Tax Act shall have the same powers which it has under section 33 of the Act 11 of 1922. These words obviously cannot relate to a stage which arises after the appeal has been disposed of.

Besides the use of the words "as it has in respect of appeals preferred to it under the Indian Income-tax Act, 1922" go against the contention of Mr. Gopal Behari. Under Act 11 of 1922 the power of rectification exists by virtue of section 35 of that Act and not because of anything contained in section 33 of that Act. If, for the purposes of an appeal under Act 11 of 1922, rectification cannot be made under the appellate powers of the Tribunal, but only under section 35, it is difficult to see how such a rectification can be made by virtue of the words underlined by us in sub-section (2) of section 19 of the Act.

We are, therefore, satisfied that section 35 of the Act 11 of 1922 does not apply to the proceedings that the assessee initiated by means of the two review applications that he made to the Tribunal.

We now come to consider the second submission of Mr. Gopal Behari that a Tribunal has no inherent power even to rectify an error which it has inadvertently made to the prejudice of a party. Learned counsel contends on the basis of certain decided cases that it is only regular courts of law which are vested with such powers and not a Tribunal. On the basis of the legal maxim that no party shall suffer prejudice by an act of a court or a Tribunal, it has been held on occasions that the court or a Tribunal has inherent jurisdiction to set aside an order which it has made by committing an error itself and which has caused prejudice to a party.

It is true that the normal rule is that the remedy of review is a creature of a statute and if the statute does not contain powers for review then the power cannot be exercised. Review proceedings of this kind are those where a party as of right can apply for reconsideration of the matter already decided upon after a fresh hearing on the merits of the controversy between the parties. Such a remedy must be provided be the statute. The inherent power to rectify a wrong committed by itself, by a court or Tribunal, is not, really speaking, a power to review. It is the atonement to the wronged party by the "court" or the "Tribunal" for the wrong that it has itself committed. The two powers operate in different fields and are different in essential quality or nature.

In Shivdeo Singh v. State of Punjab, it was held by the Supreme Court that :

"It is sufficient to say that there is nothing in article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it."

In Shri Bhagwan Radha Kishen v. Commissioner of Income-tax, it was held by this court that the Tribunal has inherent powers to set aside an order deciding an appeal on wrong grounds.

In Oriental Building and Furnishing Company v. Commissioner of Income-tax, it was held that the Tribunal has plenary jurisdiction.

In Sub-Divisional Officer (Compensation Officer), Mirzapur v. Raja Srinivasan Prasad Singh, it was held by the Supreme Court as follows :

"Every court and tribunal is entitled to reopen a proceeding which has proceeded ex parte, not because a party has failed to appear but because a notice has not been sent to a necessary party. A decision reached behind the back of a necessary party to whom notice must be sent is not binding upon such a party and the court may in such a case reopen the proceedings to give the party a chance to state its case".

In Srimathi Lachmana alias Mubraia v. Deputy Director of Consolidation a Division Bench of this court, to which one of us (Jagdish Sahai J.) was a member, held that "every court or tribunal has inherent jurisdiction apart from statutory jurisdiction to correct any error committed by itself."

In Syed Tuffuzzool Hossein Khan v. Rughoonath Pershad, it was observed as follows:

" Mr. Fraser appears to have supposed a judge of that court unable to correct his own error, in sending forth, per incuriam, an invalid order which he would not have made if duly informed.

To proceed, so far as the practice of his court will allow him, to recall and cancel an invalid order is not simply permitted to, but is the duty of, a judge, who should always be vigilant not to allow the act of the court itself to do wrong to the suitor. It would be a serious injury to the suitor himself to suffer him to attempt to execute an inoperative order."

It is not necessary to multiply authorities. It appears to us that the law is well settled that a court as a tribunal has inherent jurisdiction to rectify a wrong committed by itself when that wrong causes prejudice to a party for which that party is not responsible.

We are not mentioning the authorities on which Mr. Gopal Behari has placed reliance because none of the cases that he has cited are those where the court had to act in order to undo a mischief which had been committed by its own act to the detriment of a party without that party being responsible for it.

We are satisfied that the view taken by S. C. Manchanda J. is correct. We, therefore, dismiss this appeal with costs.

 

DISCLAIMER: Though all efforts have been made to reproduce the order accurately and correctly however the access, usage and circulation is subject to the condition that VATinfoline Multimedia is not responsible/liable for any loss or damage caused to anyone due to any mistake/error/omissions.