T. S. Sujatha v. Tax Recovery Officer, Office of the Additional Commissioner of Income Tax, Kottayam & Assistant Commissioner of Income Tax, Circle-1, Kottayam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI ## & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944 RP NO. 851 OF 2022 AGAINST THE JUDGMENT WA 537/2017 OF HIGH COURT OF KERALA REVIEW PETITIONER: T.S. SUJATHA, AGED 67 YEARS, T S SUJATHA, MAMBALATHU HOUSE, M L ROAD, KOTTAYAM., PIN - 686001 BY ADVS.KURYAN THOMAS M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI; JOSON MANAVALAN PAULOSE C. ABRAHAM; RAJA KANNAN ## RESPONDENTS: 1 TAX RECOVERY OFFICER, OFFICE OF THE ADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM - 686001 2 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, KOTTAYAM., PIN – 686 001 By SC Mr Navaneeth N. Nath for SC Mr. Jose Joseph. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **R.P. No.851/2022 in WA No.537/2017** **-2-** ## O R D E R S.V. Bhatti, J. We have heard Advocates Mr Kuryan Thomas for the petitioner and Mr Navneeth N Nath, holding for Standing Counsel Mr Jose Joseph, for the respondents. 2. The appellant in W.A. No.537/2017 is the review petitioner. The review petitioner in W.P.(C) No.11758/2010 challenged Exts.P9, P10 and P12. A learned Single Judge of this Court rejected the grounds challenging the said orders and dismissed the writ petition. Through the judgment under review, we have confirmed the findings of the learned Single Judge. Hence, the review petition is filed pointing out a few alleged errors apparent on the face of the record. 3. The grounds stated in the review petition, to us, are in disguise calling upon us to do the function of an appellate **R.P. No.851/2022 in WA No.537/2017** **-3-** court to correct the errors now pointed out by the review petitioner. We keep in our view the principle laid down by the Apex Court in _Meera Bhanja v. Nirmala Kumari Choudary_[1] which has considered the ratio laid down in _Aribam Tuleshwar Sharma v. Aribam Pishak Sharma_[2] ; _Shivdeo Singh v. State of Punjab_[3] ; and Satyanarayan _Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale_[4] and held that the function of review is not similar to the function of a Court of appeal. We refer to the principle laid down by the Apex Court in _Joginder Pal Kapoor v. R.L. Plantation Pvt. Ltd_[5] , which reads as follows: “In Thungabhadra's[6] case cited supra, the Supreme Court had very specifically suggested as under: A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for > 1 (1995) 1 SCC 170 2 (1979) 4 SCC 389 3 1963 AIR (SC) 1909 4 (1979) 4 SCC 389 5 2006 ILR 1 329 (Calcutta) 6 Thungabhadra Industries Ltd v. The Government of Andhra Pradesh – 1964 AIR 1372 **R.P. No.851/2022 in WA No.537/2017** **-4-** patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out. 12. We must hasten to add that in Tungabhadra's case (supra), the Supreme Court had not specifically said that omission to consider a previous judgment of the Supreme Court by itself amounts to an error apparent on the face of the record. In our opinion, the correct position of law would be that such decision would have to be "directly contrary" to the judgment which is being sought to be reviewed. Thus, there should be a direct conflict in between the judgment in question and the ignored judgment of the Supreme Court. If the judgment of the Supreme Court is to be used by way of raising an additional argument which was never made before the Court having given the judgment sought to be reviewed, there would be no question of an error apparent on the face of the record in not considering the judgment of the Supreme Court. Similarly, where the judgment of the Supreme Court is required to be **R.P. No.851/2022 in WA No.537/2017** **-5-** interpreted for making it applicable to the facts in the judgment in review applying the test in Tungabhadra's decision the non-consideration of that judgment would not amount to an error apparent on the face of the record. We would, therefore, test the judgment in Allahabad Bank's case (supra) as to whether the non-consideration thereof amounted to an error apparent on the face of the record.” 4. The sum and substance of the arguments is that a few of the findings in the judgment under review are incorrect and that the judgment under review has not adverted to Rule 68B of Schedule II of the Income Tax Act (for short ‘the Act’). The other ground is that there is a mistake in recording the date of order of the Tribunal, and thirdly, that the learned counsel appearing for the review petitioner/appellant did not confine the argument only to one ground i.e., arising under limitation, but canvassed other grounds as well. 5. First, we would like to examine the ground now canvassed either on the conclusion recorded by us in the **R.P. No.851/2022 in WA No.537/2017** **-6-** judgment under review or failure to refer to Rule 68B of the Act. It is to be appreciated that this Court was dealing with the correctness of the judgment in W.P.(C) No.11758/2010. The learned Single Judge has, in extenso, considered the argument made with respect to Rule 68B of the Act. Through the judgment under appeal, we have expressed complete agreement with the findings recorded by the learned Single Judge. Since it is a case of confirmation of the findings recorded by the learned Judge, we felt it unnecessary to, in extenso or to the extent now expected by the review petitioner, refer to the provisions. Further, the grounds urged have been specifically adverted to and a finding is recorded. The conclusion if is erroneous, and the error is to be corrected through a long-drawn process of reasoning, we are of the view that the jurisdiction of review is unavailable. Hence, the grounds raised in the Review Petition **R.P. No.851/2022 in WA No.537/2017** **-7-** against the merits of the case are rejected. 5.1 We take note of the error in recording the date of the order of the Tribunal and correct the same as 20.10.2008, instead of 03.11.2008 in the judgment under review. It is further pointed out that the appeal filed by the assessee before the Tribunal was ‘allowed in part’ but in the judgment under review recorded it as the appeal filed by the assessee was dismissed. It is a matter of record. We correct the sentence that the Tribunal allowed the appeal filed by the assessee in part. 5.2 The third argument is that the learned counsel appearing for the review petitioner did argue all the grounds raised in the appeal and in the judgment under review it is recorded that ‘the only ground urged is rejected’. This is certainly a matter of verification. We recollect and recapitulate **R.P. No.851/2022 in WA No.537/2017** **-8-** the contentions urged by the counsel and the efforts made to interfere with the judgment in W.P.(C) No.11758/2010. Be that as it may, since the learned counsel states that he has urged other grounds also, the last sentence in the judgment under review is corrected as follows: “ _The ground urged is rejected. The other grounds canvassed are not established warranting our interference._ ” The review petition is ordered as indicated above. S.V.BHATTI JUDGE BASANT BALAJI JUDGE jjj