TMI Blog1956 (9) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... : "What is the correct interpretation of the provisions of section 12-A (6)(a) of the Madras General Sales Tax Act?" Opinion The Opinion of the Full Bench was delivered by VISWANATHA SASTRI, J.-A petition for review of the order of the Sales Tax Appellate Tribunal was allowed by a majority and a sum of Rs. 65,623-13-0 was deleted from the turnover for the year 1948-49. According to the assessee, though an objection with regard to the liability of the sum of Rs. 65,623-13-0 to be assessed to tax had been raised before the Tribunal at the original hearing and the facts and materials relevant to a consideration of the objection had been placed before it, the Tribunal omitted to consider the objection and give its decision thereon. The assessee thereupon applied to the Tribunal under section 12-A(6) of the Madras General Sales Tax Act for a review of its previous order and for deletion of the sum of Rs. 65,623-13-0 from the turnover. Objection was taken on behalf of the State that as no fresh pleas or facts were brought before the Tribunal, the order and findings of the Tribunal on the materials on record could not be canvassed afresh on a review application. The Chairman of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er be referred to as "the Act". An assessee aggrieved by an order of assessment of the Commercial Tax Officer or the Deputy Commissioner is given a right of appeal to the Appellate Tribunal if he complies with the conditions prescribed by section 12-A(1) to (3) of the Act. The Appellate Tribunal has to decide all questions of fact and law that arise in the appeal. The clauses of section 12-A that are now relevant are these: "Section 12-A.-(4) The Appellate Tribunal shall, after giving both parties to the appeal a reasonable opportunity of being heard, pass such order thereon as it thinks fit. (6)(a) The Appellate Tribunal may, on the application either of the assessee or of the Deputy Commissioner, review any order passed by it under sub-section (4) on the basis of facts which were not before it when it passed the order: Provided that no such application shall be preferred more than once in respect of the same order: (9) Every order passed by the Appellate Tribunal under sub-section (4) shall, subject to the provisions of sub-section (6) and section 12-B, be final; and every order passed by it under sub-section (6) shall, subject to the provisions of section 12-B, be final." Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code, relating to review of judgments of courts though they are not identical in their scope or content. In Chandaji Kubaji v. State of Andhra[1956] 7 S.T.C. 332, at p. 335; 1956 A.L.T. 446, 448 and 449. the learned Judges were of the opinion that "facts" within the meaning of section 12-A(6)(a) do not also include the evidence necessary to establish them and observed: "There is an essential distinction between facts and the evidence to establish those facts. Otherwise we would have to attribute to the Legislature an intention to give two chances for each assessee to have his case heard by the Tribunal. He can argue his case on the material available with the off-chance of succeeding and, if he fails he can ask for a second hearing by producing other evidence, which he has negligently or designedly failed to produce at the first hearing. To avoid this obvious result, the word "facts" must be taken to mean something different from the evidence to establish those facts. They must relate to the basic facts sought to be proved to sustain a person's claim. If some such facts are omitted at the first hearing, the assessee or the Deputy Commercial Tax Officer, as the case may be, may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence or to a plea of non-liability not taken at the original hearing but sought to be raised and supported by evidence at the stage of review. If, owing to the impossibility or impracticability of producing crucial documentary or oral evidence at the original hearing, an assessee's plea of non-liability to tax is rejected and that evidence is subsequently forthcoming and is placed before the Appellate Tribunal at the time of review, the application for review would be one "on the basis of facts which were not before it when it passed the order" within the meaning of section 12-A(6)(a) of the Act. It will be an a fortiori case if pleas as to non-liability to tax or "basic facts ", in the language of the learned Judges in the case cited, had not been put forward at the original hearing and are put forward and sought to be supported by evidence at the stage of a review. "Facts" include things or matters which form the basis of inference in either case. The language of section 12-A(6)(a) is so wide and general that it might possibly lead to inconvenient results in that it might enable an assessee to get a further chance of hearing before the Appellate Tribunal on the strength of evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er rule 18(1) as a mistake apparent on the record or by a revision to the High Court and a remit to the Tribunal under section 12-B(4) of the Act for recording its finding on a consideration of the evidence. In this connection it has to be observed that the language of rule 18(1) is wider than that of section 152, Civil Procedure Code, and corresponds to the provision in Order 47, rule 1, Civil Procedure Code, allowing a review on the ground of "mistake or error apparent on the face of the record". The mistake can be rectified irrespective of how it occurred or whether it relates to an issue of fact or a point of law. The question whether a fact in issue has been proved when evidence for and against it has been recorded, is necessarily a pure question of fact and may not be open for determination by the High Court in revision but the High Court may, in an appropriate case, remit it for a finding on that issue under section 12-B(4) of the Act. The learned Government Pleader was at pains to convince us that there is no inherent power of review in subordinate courts and tribunals by citation of decided cases. There is no doubt some authority for this proposition. We are here concern ..... X X X X Extracts X X X X X X X X Extracts X X X X
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