The Single judge bench of the Jharkhand High Court held that explanation to Rule (1) to Order 47 of the Code of Civil Procedure provides that a decision on a question of law on which the judgment of the Court is based if reversed or modified by the subsequent decision of the Superior Court in any other case that shall not form a ground for review of such judgment.
Brief facts
The factual matrix of the case is that the tax appeal was filed in order to challenge the order passed by the income tax appellate tribunal and the issue involved in the case was whether the Samiti was entitled to exemption under section 80-P(2)(a)(i) of the Income Tax Act, 1961 on the interest received by it and that the transfer charge received by it is not taxable income. The writ court after examining the provisions held that no substantial question of law was involved and the appeal was dismissed. The present civil revision is filed against this order.
Contentions of the Petitioner
The Petitioner contended that because the amount is only appropriated once the transferee is enrolled as a member, the transfer charges that the departing member must pay do not have the nature of profit or commerciality. The Petitioner relied upon the judgment titled Income Tax Officer, Mumbai v. Venkatesh Premises Cooperative Society Ltd.
Contentions of the Respondent
The Respondent contended that the delay in the filing of the review petition is not explained. It was furthermore contended that no error is apparent on the face of the record in the order passed by the writ court.
Observations of the court
The Hon’ble Court observed that the explanation to Rule (1) to Order 47 of the Code of Civil Procedure that states that a decision made on the question of law based on the court's judgment if reversed or modified by a later decision made by the Superior Court in a different case, will not be grounds for the judgment to be reviewed.
The court noted that upon which the Petitioner relied was passed after the tax appeal was dismissed.
It was furthermore noted that Order 47 of the Code of Civil Procedure contains statutory provisions that apply in writ proceedings; if a review petition is entertained without consideration, this might lead to chaos and uncertainty within the system.
The decision of the court
With the above direction, the court dismissed the civil review petition.
Case title: Adarsh Sahkari Grih Nirman Swawlambi Samiti Limited Vs Commissioner of Income Tax, Jamshedpur
Coram: Hon’ble Mr. Acting Chief Justice Shree Chandrashekhar, and Hon’ble Mr. Justice Navneet Kumar
Case No.: Civil Review No. 119 of 2019
Advocates for the Petitioner: Mr. D. V. Pathy, Advocate (through V.C.) Mr. Abhishek Kumar, Advocate
Advocates for the Respondent: Mr. Anurag Vijay, SC Mr. Om Prakash, Advocate
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