- (1.) The Civil Appeal No. 10495/2013 and Civil Appeal 1619 of 2012 arise out of two judgments delivered by the High Court of judicature at Guwahati. By the first judgment dated 16.09.2010 various points on merits were gone into, inter alia, as to whether deductions to be made Under Section 80IB of the Income Tax Act, 1961 were allowable on facts and whether transport subsidies were or were not available together with other incentives. Ultimately the High Court after stating in paragraph 2 that two substantial questions of law arose Under Section 260A of the Income Tax Act went on to answer the two questions. The first question so framed was answered in the negative, that is in favour of Revenue, and against the Assessee. However, the second question was answered in the affirmative, in favour of the Assessee, and against Revenue, and the appeal was disposed of in the aforesaid terms. Against the aforesaid judgment dated 16.09.2010, a Review Petition being No. 108/2010 was filed by the Assessee before the very Division Bench. In a long judgment dated 08.04.2013, the Division Bench recalled its earlier order dated 16.09.2010 in the following terms: 125. In the present case, since this Court did not formulate the substantial questions of law for adjudication before hearing of the appeal on merit, there can be no escape from the conclusion that hearing of the appeal prior to its admission has to be treated as a hearing on the admission of the appeal in order to determine if the substantial questions of law, as contended by the Appellants, had or had not arisen and it was only upon having formulated the questions of law, which according to the High Court, were the substantial questions of law for adjudication in the appeal that the appeal could or ought to have been heard. 126. As the omission, on our part, to formulate the substantial questions of law and, then, invite the parties to have their say in the matter amount to denial of opportunity of effective hearing to the parties concerned, particularly, to the review Petitioners, we must have the magnanimity and courage to acknowledge our mistake, recall the judgment and order dated 16.09.2010, and, then, decide the appeal, on merit, after having formulated the substantial questions of law, which this Court may deem necessary for adjudication of the appeal. 127. Because of what have been discussed and pointed out above, these review petitions succeed. The impugned judgment and order stand accordingly reviewed and recalled.
(2.) Mr. Radhakrishnan, learned Senior Advocate appearing on behalf of the Revenue, assailed the aforesaid judgment dated 08.04.2013 stating that it was factually incorrect that no substantial questions of law have been framed and that such questions are to be found in the very beginning of the judgment dated 16.09.2010 itself. He further argued, referring us to Section 260A(7), that only those provisions of the Code of Civil Procedure could be looked into for the purposes of Section 260A as were relevant to the disposal of appeals, and since the review provision contained in the Code of Civil Procedure is not so referred to, the High Court would have no jurisdiction Under Section 260A to review such judgment.
(3.) Mr. Gopal Subramaniam, learned senior Counsel appearing on behalf of the Assessee countered this submission. He pointed out to us that in point of fact the question as to whether there were substantial questions of law at all had been argued before the very Division Bench which Division Bench had in fact reserved order and then gone on to dispose of the appeal on merits without any pronouncement on whether there were substantial questions of law at all. The Division Bench, however, went ahead and by its judgment dated 16.09.2010 referred to two questions and went on to answer them. Insofar as the second submission of Mr. Radhakrishnan is concerned, Mr. Subramaniam argued that the High Court being a Court of Record Under Article 215 of the Constitution of India, the power of review would inhere in it as such.;