Income Tax Ordinance (XXXI of 1979)---

----S. 136---Civil Procedure Code (V of 1908), Ss.114, 152 & 153---Reference to High Court---Jurisdiction exercised, by the High Court is purely advisory and is not that of Civil Court exercising original or appellate or revisional jurisdiction---Powers and jurisdiction of the High Court is that which is expressed and conferred upon it and also that which inhere in the exercise of that function and jurisdiction of giving advice---High Court in answering questions or disposing of references under S.136, Income Tax Ordinance, 1979 does not exercise any jurisdiction conferred upon it by Civil Procedure Code, 1908 or the Charters or the Act establishing the respective High Courts---High ;. Court in Reference under the Ordinance merely exercises advisory or consultative jurisdiction while the appeal is kept pending before the Income Tax Appellate Tribunal and nothing can be implied as detracting from the jurisdiction of the Tribunal---Power to review is statutory and no application for review of order passed in Reference is competent---Application under S.114 read with Ss.152 & 153, C.P.C. to the High Court recalling its judgment in Reference or for amending or altering the same or for granting any other suitable relief which the High Court deemed fit and proper was dismissed.-

Under section 136 of the Income Tax Ordinance, 1979 the provision for reference to the High Court is the same as under section 66 of the Income -tax Act, 1922. The scheme of the Ordinance so far as the scheme of reference to the High Court on a question of law arises, the Tribunal can and in certain circumstances must seek, at the instance of the assessee or at the instance of the Revenue, the opinion of the High Court on such question. The jurisdiction exercised by the High Court is purely advisory. It is not that of a Civil Court exercising original or any appellate or revisional jurisdiction. We are of the view that the powers and jurisdiction of the High Courts are those which are expressed and conferred upon them and also those which inhere in the exercise of that function and jurisdiction of giving advice. The appeal is kept pending before the Appellate Tribunal.

In reference under the 1922 Act as well as the Ordinance, the Courts merely exercised advisory or consultative jurisdiction while the appeals are kept pending before the Tribunal. Therefore nothing should be implied as detracting from the jurisdiction of the Tribunal. The power to review is statutory.

No application for review of order passed in reference was competent.

In answering questions or disposing of reference under section 136 of the Ordinance, the High Courts do not exercise any jurisdiction conferred upon them by the Code of Civil Procedure or the Charters or by the Acts establishing the respective High Courts. In respect of certain matters, jurisdiction exercised by the High Court must be kept separate from the concept of inherent powers or incidental powers in exercising jurisdiction under section 136 of the Ordinance. Section 136 of the Ordinance is a special jurisdiction of a limited nature conferred not by the Code of Civil Procedure or by the Charters or by the Acts constituting such High Courts but by the special provisions of the Income Tax Ordinance for the limited purpose of obtaining the High Court's opinion on question of law. In giving the opinion properly, if any question of incidental or ancillary power arises such as giving an opportunity or restoring a reference dismissed without hearing or giving some additional time to file the paper books, such powers inhere to the jurisdiction conferred upon it. But such incidental powers cannot be so construed as to confer the power of reviewing the judgment.

Application before the High Court under section 114 read with section 153, C.P.C. recalling its judgment in Reference for amending or altering the same or for granting any other suitable relief, which the High Court, deemed fit and proper was dismissed.

Tata Iron and Steel Company Limited v. Chief Revenue Authority, Bombay (1923) 50 IA 212 (PC); CIT v. Bombay Trust Corporation (1936) 4 ITR 323 (PC) = AIR 1936 PC 2,69; United Bank of India Ltd. v. CIT, Dacca 1960 PTD 768; Commissioner of Income Tax, Patiala v. Ambala Flour Mills (1970) 78 ITR 256; Roop Narain Ramchandra (P.) Ltd. v. Commissioner of Income Tax, U.P. (1972) 84 ITR 181; K. Ahmad v. Commissioner of Income Tax, Kerala (1974) 96 ITR 29; Master Construction Company (P.) Ltd. v. State of Orissa and another AIR 1966 SC 1047; Jaipur Mineral Development Syndicate v. Commissioner of Income Tax, New Delhi (1977) 106 ITR 653; CIT v. Radha Swami Salony (1987) 167 ITR 121 and M/s. NA. Industries, Karachi v. Commissioner of Income Tax, Central Zone `A', Karachi 1993 PTD 45 ref.

Sirajul Haque Memon for Applicant.

Nasrullah Awan for Respondent.

JUDGMENT

SYED HAIDER ALI PIRZADA, J. This is an application under section 114 read with sections 152 and 153 of the Code of Civil Procedure for recalling our judgment, dated 26-4-1993 or for amending or altering the said judgment or for granting any other suitable relief as this Court may deem fit and proper in the interest of justice. The application has been made on the ground that the application for rectification under section 156 made to respondent No.2 by the petitioner vide Tribunal's order dated 10-11-1985 was partially allowed and the order under section 135 was directed to be modified, The ground is that the mistake which is apparent from the record, was occasioned due to the respondent No.2 having treated the rectification application under section 156 as "dismissed" rather than "partially allowed and disposed of".

The Scheme of section 66(1) of the Act of 1922 as well as section 136(1) of the Ordinance are well known.

We may note that the Act of 1922 did not and the Ordinance does not contain any express provision empowering the High Court to review the judgment. Therefore the assessee sought to invoke the inherent jurisdiction or the ancillary powers of the Court.

Prior to 1918, there was no provision for reference to the High Court at all in respect of any decision by the Revenue Authorities. In Act VII of 1918, section 5 contained this provision under which the Chief Revenue Authority was empowered to refer to the High Court when any question arose regarding the interpretation of any of the provisions of the Act or of any rule made thereunder. This is no part of the Civil or Appellate Authority or revisional jurisdiction of the High Court.

Section 66 of the Act of 1922 contains similar provisions like section 149 of the English Income Tax Act, 1918. Section 66 of the Act of 1922 provides that within a certain time either at the instance of the assessee or at the instance of the Revenue Authority the Tribunal might refer a question of law for the opinion of the High Court. It also empowered the assessee to make an application to the High Court in case the Tribunal refused to refer the question after drawing up a statement of case.

Under section 136 of the Ordinance, the provision for reference to the High Court is the same as under section 66 of the 1922 Act. The scheme of the Ordinance so far as the scheme of reference to the High Court on a question of law arises, the Tribunal can and in certain circumstances must seek, at the instance of the assessee or at the instance of the Revenue, the opinion of the High Court on such question. The jurisdiction exercised by the High Court is purely advisory. It is not that of a Civil Court exercising original or any appellate or revisional jurisdiction. We are of the view that the powers and jurisdiction of the High Courts are those, which are expressed and conferred upon them and also those, which inhere in the exercise of that function and jurisdiction of giving advice. The appeal is kept pending before the Appellate Tribunal.

In Tata Iron and Steel Company Limited v. Chief Revenue Authority, Bombay (1923) 50 IA 212 (PC), the Judicial Committee had to consider the question whether the function of the High Court under these provisions was advisory or not. The Judicial Committee decided that such advice was not a judgment within the meaning of Clause 39 of the Letters Patent of the High Court of Bombay. The use of the expression "determination" was not decisive as to whether the decision was merely advisory or not. The decision or order made by the Court under section 51 was merely advisory. This view was affirmed in CIT v. Bombay Trust Corporation (1936) 4 ITR 323 (PC) = AIR 1936 PC 269.

In references under the 1922 Act as well as the Ordinance, the Courts merely exercised advisory or consultative jurisdiction while the appeals are kept pending before the Tribunal. Therefore nothing should be implied as detracting from the jurisdiction of the Tribunal. The power to review is statutory.

In United Bank of India Ltd. v. CIT, Dacca 1960 PTD 768, the learned counsel appearing for the respondent tried to raise before the Court, the identical question which he had raised before High Court in the above Rules. He was not allowed to do. It was observed at page 458 as under:---

"The assessee and the Commissioner has been given a right to come to the High Court under section 66(2) of the Act and the High Court it is not satisfied that the decision of the Appellate Tribunal is correct can require the Tribunal to state the case and refer it and when that is done the Appellate Tribunal is under an obligation to state the case and refer it to the High Court for their decision and under section 66(5) the High Court, after hearing the case referred to them, has to decide the question of law raised by that case and deliver the judgment. It is thus clear that, while hearing the case under section 66(2), we cannot sit on judgment on the propriety of the order of the High Court asking the Tribunal to state the case and refer it to the High Court. If the Income Tax Department was not satisfied with the order of the High Court asking the Tribunal to state a case, they could have preferred an appeal against it. They however did not do so. Hence we have no power to revise the order of this Court asking the Tribunal to state a case and to refer it to the High Court:"

In Commissioner of Income Tax, Patiala v. Ambala Flour Mills (1970) 78 ITR 256, the Supreme Court of India held that the High Court exercising advisory jurisdiction was incompetent to amend the order of the Appellate Assistant Commissioner.

In Roop Narain Ramchandra (P.) Ltd. v. Commissioner of Income. Tax, U.P. (1972) 84 1TR 181, the assessee failed to file requisite copies of paper books. The reference was returned unanswered. It was held that the Income Tax Act does not confer any power on the High Court to recall an order returning a reference unanswered. It was further held that section 151, C.P.C. does not apply as this is concerned with the advisory jurisdiction of the Court under the Income Tax Act. It was further observed as under:---

"The rules of the Court give a discretion to extend the time allowed for submission of paper books. But where no application has been made for extension of time and the reference is returned unanswered, the rules do not give the Court power to recall the order. The order returning a reference unanswered is not an administrative order. It is virtually an order dismissing the reference for non-prosecution and is a judicial order operating on the rights of parties. Hence, section 21 of the General Clauses Act, 1897, would not apply."

In K. Ahmad v. Commissioner of Income Tax, Kerala (1974) 96 ITR 29, the petitioner applied to the Kerala High\Court under section 256 of the. Income Tax Act, 1961 and section 151 of the Code of Civil Procedure praying for the deletion in the said judgment of the sentence. The Full Bench of the High Court while allowing the application observed as follows:---

"That section 157 of the Code of Civil Procedure is inapplicable, section 151 is also inapplicable, that this Court in exercising a jurisdiction quasi-judicial in nature in answering a question referred to us at the instance of the assessee or the department and so we have no t' ` inherent powers arising from these provisions even if accepted cannot be a ground for rejecting the prayer in the petition. The power we think we have is apart from the sections. Section 151 of the Code of Civil Procedure does not confer any inherent power on a Court. The section only saves that power. The power was there even without the section particularly in a Court of record which a High Court is and apart from the section what inherent power existed exists now and we have no doubt that as long as we follow the system of jurisprudence we have been following the law will continue to make that power available. Errors can creep in and there can be omissions and if there are accidental errors or omissions, we conceive that we have the jurisdiction to correct those errors and rectify those omissions. The principle is that no act of a Court shall ever injure a party."

In that view of the matter, the petition was allowed and the sentence was deleted from the judgment.

The Supreme Court of India in its decision in Master Construction Company (P.) Ltd. v. State of Orissa and another AIR 1966 SC 1047 has clearly delineated the ambit of the meaning of the words "accidental slip or omission" arising in a judgment. It was observed at page 1049 as follows:--

"Rule 83 provides a summary remedy within a narrow compass. The jurisdiction of the Commissioner under this rule is limited and is confirmed only to the correction of mistakes or omissions mentioned therein. An arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless mistake or omission unintentionally made. There is another qualification, namely, such an error shall be apparent on the face of the record, that is to say, it is not an error which depends for its discovery, on elaborate arguments on' questions of fact or law. The accidental slip or omission is an accidental slip or omission made by the Court. The obvious instance is a slip or omission to embody in the order something which the Court in face ordered to be done. This is sometimes described as a decretal order not being in accordance with the judgment. But the slip or omission may be attributed to the Judge himself. He may say something or omit to say something which he did not intend to say or omit. This is described as a slip or omission in the judgment itself. The cause for such a slip or omission may be the Judge's inadvertence or the advocate's mistake. But however wide the said expressions are construed, they cannot countenance a re- argument on merits on questions of fact or law, or permit a party to raise new arguments which he has not advanced at the first instance. If that was the scope of Rule 83, the question is whether the Commissioner's order is within its scope."

In Jaipur Mineral Development Syndicate v. Commissioner of Income Tax, New Delhi (1977) 106 ITR 653, the assessee at whose instance the reference had been made not put in appearance and had also not filed the paper book in spite of the service of notice. The High Court declined to answer the reference. The assessee filed application stating that the paper books had not been filed because of a bona fide mistake. Prayer was made for permitting the assessee to file the paper books and for rehearing the reference. The application was dismissed after observing that it had become functus officio to entertain the application because of its earlier order as challenged before the Supreme Court of India. It was observed at page 657 as follows:--

"The High Court in suitable cases has, as already mentioned, inherent power to recall the order made in the absence of the party and to dispose of the reference on merits. There is nothing in any of the provisions of the Act which, either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on merits. The Courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of tae process of the Court. To hold, otherwise would result in quite: a number of cases in gross miscarriage of justice. Suppose, for instance a party proceeds towards the High court to be present at the time the reference is to be taken up for hearing and on the way meets with a accident. Suppose, further, in such an event the High Court passes an order declining to answer the question referred to it because of the absence of the person who meets with an accident. To hold that in such a case the High Court cannot recall the said order and pass an order for the disposal of the reference on merits, even though full facts are brought to the notice of the High Court, would result in obvious miscarriage of justice. It is to meet such situations that Court can exercise in appropriate cases inherent power. In exercising inherent power, the Courts cannot override the express provisions of law, where however, as in the present case, there is no express or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal of the reference on merits; the Courts, in our opinion, should not be loath to exercise such power provided the party concerned approaches the Court with due diligence and shows sufficient cause for its non-appearance on the date of hearing."

In that view of the matter, the appeal was allowed, the order of the High Court was set aside and the case was remanded to it for answering the questions referred to in on merits.

In CIT v. Radha Swami Salony (1987) 167 ITR 121 the assessee claimed exemption under sections 11 and 12 which was accepted by the Tribunal. On a reference, the High Court reversed the decision of the Tribunal. The assessee filed an application under section 151 of the Code of Civil Procedure to clarify, rectify and/or modify the judgment of the Court. It was contended on behalf of the assessee that on the findings given by the High Court, the assessee was entitled to the benefit of section 11(b) of the Income Tax Act, 1961, even in clause (1)(a) of section 11 did not apply and this having not been done, there was a suitable appearance on the face of the record. It was observed as follows:--

"...We are of the opinion that the application made under section 151 of the Code of Civil Procedure, does not confer upon us the power to grant the relief sought for therein. Under section 151 of the Code of Civil Procedure, the power to pass orders ex debito justitiae has been preserved. This section has not conferred any new power but has only confirmed pre-existing powers to act ex debito justitiae. This is a power inherent in a Court by virtue of its duty to do justice between the parties before it. The inherent power, however, cannot be exercised when the Code of Civil Procedure itself provides for a particular situation or contingency or points out the procedure to be adopted."

At page 124 it was further observed as under:--

"Even if we were to assume that every Court of plenary jurisdiction in order to prevent miscarriage of justice or to correct grave and palpable errors committed by it can allow an application for correction, the present is not a case where we can grant the relief prayed for in the application under section 151, Code of Civil Procedure. There are definite limits to the exercise of the powers conferred by section 151 of the Code of Civil Procedure."

It was further observed that "in fact, granting of the application would result in reviewing the judgment of this Court which is not the scope of section 151 of the Code of Civil Procedure."

In M/s. NA Industries, Karachi v. Commissioner of Income Tax, Central Zone `A', Karachi 1993 PTD 45, a Division Bench of this Court comprising Mamoon Kazi and Salahuddin Mirza, JJ referred to a passage appearing on page 1148 of Palkhivala's Commentary on the Law and Practice of Income Tax, Seventh Edition, which reads as under:---

"Advisory jurisdiction of Court.---The High Court or the Supreme Court is constituted a Court of appeal under this section or section 257 (Cf. S.269H). The

jurisdiction, which it exercises in dealing with income-tax reference is only an advisory jurisdiction. It is strictly limited jurisdiction and the limit of that jurisdiction is clearly laid down in this section and section 260. The jurisdiction conferred upon the High Court by this section is a special jurisdiction and forms no part of the High Court's Original or appellate jurisdiction:"

The Bench further referred a passage appearing at 1170 of the same book which reads as under:---

"Review ---An application for review of a judgment passed by a High Court in a reference is not maintainable, for the High Court which determines the questions referred under section 256 does not act as a Civil court so as to attract the provisions of the Code of Civil Procedure. But the Court has inherent jurisdiction to correct accidental errors or omissions in its judgment and to set aside an order passed ex parte. See further under section 256, "Advisory Jurisdiction of Court", p. 1148."

The Bench then observed that no application for review of order passed in reference was competent.

It is an admitted position that in answering questions or disposing of reference under section 136 of the Ordinance, the High Courts do not exercise any jurisdiction conferred upon them by the Code of Civil Procedure or the Charters or by the Acts establishing the respective High Courts. We are of the humble view that in respect of certain matters, jurisdiction exercised by the High Court must be kept separate from the concept of inherent powers or incidental powers in exercising jurisdiction under section 136 of the Ordinance. Section 136 of the Ordinance is a special jurisdiction of a limited nature conferred not by the Code of Civil Procedure or by the Charters or by the Acts constituting such High Courts but by the special provisions of the Income Tax Ordinance for the limited purpose of obtaining the High Court's opinion on question of law. In giving the opinion properly, if any question of incidental or ancillary power arises such as giving an opportunity or restoring a reference dismissed without hearing or giving some additional time to file the paper books, such powers inhere to the jurisdiction conferred upon it. But such incidental powers cannot be so construed as to confer the power of reviewing the judgment. '

For the aforesaid reasons, we dismiss the, application. We, however, make no order as to costs.

M.B.A./N-520/KApplication dismissed.