DILIP KUMAR SETH, J. -
(1.)THIS is an application for review of an order passed on June 12, 2000, in F. M. A. No. 484 of 2000 245 ITR 196 (F. M. A. T. No. 3124 of 1992) by the Division Bench presided over by Mr. Justice Y. R. Meena and Mr. Justice R. K. Mazumdar, as their Lordships then were.
(2.)MR . Prosad has taken three grounds, the first of which is that while the judgment was reserved, Mr. Prosad was asked to submit his written notes on submissions but before written notes on submissions could be submitted the judgment was delivered. Mr. Prosad, in his written notes of submission, had cited some decisions, which he could not cite at the time of hearing. Since the judgment was delivered before he could submit his written submissions, those decisions were not considered, and further the court had assured that there would be further hearing before the delivery of the judgment but that was not adhered to. The second question he raised is that the court did not take into consideration the law as it stood on June 12, 2000, in respect of the interpretation of Section 179 of the Income -tax Act, 1961, as was amended with effect from October 1, 1975. The court had relied on the decision passed by the Kerala High Court, which, according to him, was not applicable. It did not consider the decision of the Bombay High Court in Union of India v. Manik Dattatreya Lotlikar : 172ITR1(Bom) holding the field. Therefore, the judgment is per incuriam, which is a mistake apparent on record. The third question that he has raised is that the company went into liquidation even before the husband of the petitioner ceased to be the director of the company. Therefore, on the facts the court had committed a mistake apparent from the record.
We have gone through the decision sought to be reviewed, namely, the decision in F. M. A. No. 484 of 2000 (F. M. A. T. No. 3124 of 1992) disposed of on June 12, 2000, since reported in Smt. Bidya Devi v. CIT : 245ITR196(Cal) . It appears from the said decision (June 12, 2000) that the court had taken note of an earlier order passed by this court between the parties in respect of the self -same question passed in C. O. No. 154(W) of 1985 on February 17, 1986, by Mr. Justice Suhas Chandra Sen, as his Lordship then was. In the said order (dated February 17, 1986) the court had held that the amendment of Section 179 effective from October 1, 1975, was not retrospective. The assessment for the year 1974 -75 would be governed by the Income -tax Act as it stood on April 1, 1975 (page 100 of the paper book). Therefore, the amended provision could not be invoked in the case of the petitioner. It was also held (page 100 of the paper book) that unless the company was shown to have gone into liquidation at the time when the director had ceased to be a director, Section 179 had no manner of application. However, the case was remanded to the Income -tax Officer for proper decision. It is noted in the decision (dated June 12, 2000) that the Assessing Officer found that the company had not gone into liquidation. No appeal was preferred against the order of the Assessing Officer. There was a suo motu revision by the Commissioner under Section 263 of the Income -tax Act, against which this writ petition has been filed. The Commissioner has not recorded any finding that the company had gone into liquidation. On the other hand, he had proceeded on the basis of the decision in Manik Dattatreya Lotlikar's case : 172ITR1(Bom) and had held that it is immaterial whether the company had gone into liquidation or not and had applied Section 179 as amended with effect from October 1, 1975. This has since been challenged in this writ proceeding out of which this appeal arises.
(3.)THE court in the decision dated June 12, 2000, had taken note of all these situations. Even if we assume that the contention of Mr. Prosad was not considered while delivering the judgment and that the situation in law was wrongly appreciated, even then we cannot help because of the fact that in the decision by this court between the parties in C. O. No. 154(W) of 1985 disposed of on February 17, 1986, in respect of the self -same question, it was held that the provision of Section 179 was not retrospective and could not be attracted. This decision is binding inter se the parties and the court cannot go behind the same. The order by the Assessing Officer or the Commissioner could not run contrary to the said finding. It further appears that the Division Bench in its order dated June 12, 2000, had noticed the decision in Manik Dattatreya Lottikar's case : 172ITR1(Bom) as well as the decision by the Kerala High Court in Ratanlall Murarka v. ITO : 130ITR797(Ker) . While dealing with those decisions, it had held that the Kerala High Court was not dealing with the question of retrospectivity of the amendment of Section 179 and, therefore, it had no manner of application. Whereas about the Bombay High Court decision in Month Dattatreya Lotlikar's case : 172ITR1(Bom) it was held to be inapplicable in the present facts and circumstances of the case. In as much as the Division Bench in the decision dated June 12, 2000, had held that this question was concluded between the parties by the decision dated February 17, 1986, in C. O. No. 154(W) of 1985 remanding the case to the Assessing Officer. The scope of remand was limited to the extent of finding as to whether the company had gone into liquidation on the basis of the determination by the court in the order dated February 17, 1986, that the husband of the petitioner would not be liable unless the company had gone into liquidation, after holding that the amendment of Section 179 was not retrospective. This finding would stare on the face of the parties and operate as res judicata. On this distinctive feature, the Division Bench had held that the Bombay decision in Manik Dattatreya Lotlikar's case : 172ITR1(Bom) would be inapplicable in the present case.