SURAJMULL CHOTEYLAL Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) This is an application for review and reconsideration of an order passed by this court on 27th of June, 1974. The said order was passed in Income-tax Reference No. 265 of 1967. It appeals that in respect of the assessment year 1958-59, there was a reference to this court under Section 66(1) of the Indian Income-tax Act, 1922, on the following two questions :

(2.) Following the decision of the Supreme Court in the case of Raghunath Prasad Poddar v. Commissioner of Income-tax , we have remanded the case back to the Tribunal for finding out whether actual delivery had been given in respect of delivery orders to the ultimate purchasers. We have further directed the Tribunal to give its finding after giving opportunities to the parties and if necessary after taking additional evidence. Thereafter, on or about 31st of July, 1975, the Supreme Court by its decision in the case of Davenport & Co. P. Ltd. v. Commissioner of Income-tax expressed the view that "actual delivery" in Explanation 2 to Section 24(1) of the Income-tax Act meant real as opposed to notional delivery. "The Supreme Court was, further, of the opinion that whether a transaction was speculative in the general sense or under the Contract Act was not relevant for the purpose of this Explanation. The definition of delivery in Section 2(2) of the Sale of Goods Act which had been held to include both actual and constructive or symbolical delivery had no bearing on the definition of speculative transactions in the Explanation, The Explanation 2 to the section, the Supreme Court reiterated, did not invalidate speculative transactions which were otherwise legal but gave a special legal meaning to that expression for the purpose of the Income-tax Act only. The Supreme Court further expressed the view that the position of law had been correctly stated in the decision of the Calcutta High Court in the case of D. M. Wadhwana v. Commissioner of Income-tax [1966] 61 ITR 154. In that view of the matter the Supreme Court overruled the view in the case of Raghunath Prasad Poddar.

(3.) In these circumstances, the revenue has made this application asking for an order that the judgment and order in this case dated the 27th June, 1974, passed by us be rectified or modified or reviewed. The question is, is that possible ? The scope of reconsideration or re-examination by courts is not uncharted. On behalf of the revenue it was stated that the application was made under Section 151 of the Code of Civil Procedure. But to maintain an application under Section 151 of the Code of Civil Procedure it must be on a ground which is not expressly or impliedly prohibited by any other provisions of the Code of Civil Procedure.