Commissioner of Income Tax vs R. Dalmia

Y.K. Sabharwal, J.—The questions, subject-matter of IT Reference Nos. 204 to 207 of 1976 were answered by a Division Bench decision of this Court by oral judgment dated 20-2-1991 dictated in the Court. In these applications we are only concerned with the answer of question No. 4 which was the subject matter of the said decision. The question No. 4 reads as under: "4. Whether, on the facts and in the circumstances of the case, the right which the assessee had acquired under the agreement dated 21-5-1955 was a proprietary right and whether the transfer of the Nahur lands by the LIC to a third party nominated by the assessee yielded any capital gains assessable to tax?"

In view of the concession made by the counsel for the assessee the aforesaid question was answered in favour of the department. The relevant portion of the judgment reads as under : "As regards question No. 4 Mr. Kapur, the learned counsel for the assessee, concedes and submits that the same may be answered in favour of the department. In view of this concession the said question is answered in the affirmative and in favour of the department."

The assessee has now filed these review applications under Order 47 Rule 1 read with sections 114 and 151 of the Code of Civil Procedure, 1908, seeking review of the decision dated 20-2-1991 insofar as it relates to the answer to question No. 4 in favour of the department.

The review applications were filed on 30-11-1993 along with an application u/s 5 of the Limitation Act seeking condonation of delay of 982 days in filing the application for review.

According to the applicant, similar question in the case of this very assessee had been answered against the department in the case Commissioner of Income Tax Vs. R. Dalmia, and in this view of the decision in favour of the applicant, the concession could not have been made or was mistakenly recorded. The learned counsel for the applicant-assessee does not dispute and in our view rightly that in law the review applications are not maintainable. The learned counsel, however, contends that though titled as review application, in fact, the applicant seeks correction of accidental slip due to which the aforesaid concession was recorded. It is contended that no concession was made and the same seems to have been recorded in the judgment on account of some accidental slip. We may, however, notice that in the rejoinder filed by the applicant to the reply of the department to application seeking condonation of delay, the applicant pleaded that he approached this Court as soon as mistaken concession had come to his knowledge on receipt of ex parte order of the Tribunal dated 30-8-1993 received on 10-11-1993. From this, the case of the applicant/assessee seems to be that he came to know about the Act of recording of concession only on 10-11-1993. But the averments made by the applicant in the application seeking condonation of delay clearly show that he knew that a concession had been made on the date of the judgment. Apart from this, as noticed above, the judgment was dictated in the Court and, therefore, it is not possible for us to accept the contention that the concession came to be recorded in the judgment on account of any accidental slip. It is obvious that a conscious concession made by the applicant was recorded in the judgment. We, thus, cannot accept the contention that concession was recorded on account of any accidental slip.

There is no provision in the income tax Act, 1961 conferring power of review on the Court passing order u/s 256. In this view of the matter, the applications seeking review are not maintainable. The review applications as also applications seeking condonation of delay are, accordingly, dismissed. There will be no order as to costs.