TMI Blog1967 (5) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, against the dealers by issuing a notice to them under that provision. The dealers appeared before the Sales Tax Officer but did not produce any account books, their plea being that they were not "dealers" within the meaning of the Act and that they carried on no business within the territorial limits of the State of Uttar Pradesh. The Sales Tax Officer made an ex parte assessment on the basis of the turnover of Rs. 4,00,000 in respect of the two years for which proceedings had started under section 21 of the Act. The dealers appealed to the Assistant Commissioner (Judicial), Sales Tax, who allowed the appeal on the finding that the dealers conducted no business within the territorial limits of Uttar Pradesh. The Sales Tax Commissioner (hereinafter referred to as the Commissioner) filed two revision applications (one in respect of each of the two years) before the Judge (Revisions). During the course of the hearing of the revision applications the departmental representative made applications for filing certain additional evidence which had been procured by the Sales Tax Officer, Special Investigation Branch, Agra. The Judge (Revisions) issued notice to the dealers. On b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner, Assistant Commissioner (Judicial) and Judge (Revisions) or the Additional Judge (Revisions) shall have the same powers as are vested in a court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely: (a) enforcing the attendance of any person and examining him on oath or affirmation; (b) compelling the production of documents; and (c) issuing commissions for the examination of witnesses; and any proceeding before any of the officers aforesaid shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code." Mr. Raja Ram submitted that this rule may be read along with rule 76, which reads: "76. Form of summons for production of a document.-Summons for the production of a document or the attendance of any person shall be issued in Form XVI." Form XVI is reproduced below: "................................................. Whereas your attendance is necessary to give evidence ---------------------------------------------------------------Whereas the following documents (here describe the documents in sufficient detail to permit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such copies or extracts taken therefrom as may be considered necessary..." I am unable to read anything in section 13 as conferring on the Judge (Revisions) the power of accepting additional evidence or bringing on record fresh material. All that can be done under this provision is that the authorities mentioned under rule 4 can require a dealer or any other person to produce the documents mentioned in that section before itself. This provision only confers on the Sales Tax Authorities the power to get before themselves documents mentioned in that section. Without this provision they might not have the authority to require the production of documents some of which may be belonging to private persons. Without there being an express provision to that effect no court or tribunal or administrative body would have the right to get produced before itself private or public documents. That power has now been conferred by this provision. But this is quite a different power from the one of taking additional evidence. In the Civil Procedure Code the power of summoning documents and witnesses is given in Order 16, Civil Procedure Code (See rules 6, 7, 8, 9, 10) but the power to take fresh m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a suit in respect of the following matters, namely" (underlined* by me). The word "namely" makes the provisions of clauses (a) to (c) exhaustive and not merely illustrative. The word "namely" means the following and no more. Consequently it is not possible to read in rule 75 anything beyond what has been expressly conferred by clauses (a) to (c) of that rule. I have already pointed out that the Code of Civil Procedure has maintained a clear distinction between the powers enumerated in clauses (a) to (c) of rule 75 and a power to record additional evidence by an appellate court. The rule is emphatic that the powers are those which a court would have under the Code of Civil Procedure and in respect of the matters confined to clauses (a) to (c) of that rule. That being the position, I am unable to agree that we can read in rule 75 the intention of conferring on the Judge (Revisions) the power of admitting additional evidence. In this connection, I would also like to point out that the rule-making authority has deliberately chosen not to frame a rule for the Judge (Revisions), which corresponds to rule 68(8) of the Rules, already reproduced above. The Judge (Revisions) is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the rule-making authority was to give the power of additional evidence in the sense it is contained in Order 41, rule 27, Civil Procedure Code, section 428 and section 540, Criminal Procedure Code, as also rule 68 of the Rules, the rule-making authority would have provided in clear terms a rule as rule 68 of the Rules. Mr. Raja Ram, learned Junior Standing Counsel, has placed reliance upon The State of Kerala v. K. M. Cheria Abdulla and Company[1965] 16 S.T.C. 875. and has emphasised the following passage in that judgment: "The Deputy Commissioner is thereby invested with power to satisfy himself about the legality or propriety of any order passed or proceeding recorded by any officer subordinate to him, or the regularity of any proceeding of such officer, and to pass such orders with respect thereto as he thinks fit. For exercising this power, he may suo motu or on application call for and examine the record of any proceeding or order. There is no doubt that the revising authority may only call for the record of the order or the proceeding, and the record alone may be scrutinised for ascertaining the legality or propriety of an order or regularity of the proceeding. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases has to be exercised on the basis of the record maintained by the subordinate officer. Their Lordships, after examining the language of section 12 which provided for revision and section 19 which gave the rule-making power to the State Government, came to the conclusion that in view of those provisions rule 14-A could not be considered to be ultra vires. In our case we have to consider the scope of section 10 without having a rule similar to rule 14-A and in the face of the special circumstance that rule 68(8) has expressly conferred the power of additional evidence on the appellate authority but not on the revising authority. Under these circumstances, in my opinion, the case is distinguishable. Their Lordships have, in fact, stated that even the power conferred by rule 14-A must be read subject to the scheme of the Act by observing as follows: "It would not invest the revising authority with power to launch upon enquiries at large so as either to trench upon the powers which are expressly reserved by the Act or by the Rules to other authorities or to ignore the limitations inherent in the exercise of those powers. For instance, the power to reassess escaped turnover is pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional evidence has been expressly conferred by rule 68(8) upon the appellate authority. So far as the assessing authority is concerned it has already vast powers of sending for or recording such evidence as it considers necessary. Sub-section (2) of section 7 of the Act confers on the assessing authority the power to hold "such enquiry as he considers necessary". Section 21 also confers on the assessing authority the power of "making such enquiry as may be necessary". Consequently, the appellate and the assessing authority, on a remand order passed by the assessing authority (sic), would have the power of making such enquiry as they thought fit which would include the power to record additional evidence. Such a power has not been expressly provided either by any provision of the Act or the Rules. It is also significant to point out that by virtue of the provisions of section 9(4) of the Act an older passed by the appellate authority is final and subject only to an order passed in revision. That order becomes final on the basis of the material before the appellate authority. In my opinion, it would be subversive of the scheme of the Act to hold that that finality can be destroyed no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence now sought to be produced is completely a new one and would completely change the complexion of things. If it is allowed to be produced it would result in the period of limitation provided by section 21 being violated. In State of Kerala v. K. M. Cheria Abdulla and Co.[1965] 16 S.T.C. 875. , Shah, J., while delivering the majority judgment has clearly stated that "the power to reassess escaped turnover is primarily vested by rule 17 in the assessing authority and has to be exercised subject to certain limitations, and the revising authority will not be competent to make an enquiry for reassessing a taxpayer". If the additional evidence is brought on record now, the result would be that it would be starting an enquiry for reassessing the assessee even though the period of limitation for the same provided by section 21 of the Act has expired. In that view of the matter also, in my opinion, the revising authority would not be justified in accepting fresh evidence. For the reasons mentioned above, I would answer both the questions in the negative in favour of the assessee and against the department. I would direct the department to pay the assessee a sum of Rs. 100 by way o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the revisional court is not that of continuing the original proceedings but of examining what has already taken place with a view to determine whether what had already taken place suffers from any illegality or impropriety. In order to satisfy itself as to the legality or propriety of an order made by an appellate or assessing authority, section 10(3)(i) of the Act does not expressly require or authorise the adduction of fresh evidence. Ordinarily, the record itself has to be perused in order to determine whether there is such an illegality or impropriety as to call for the exercise of the revisional jurisdiction. Upon examining the record the revising authority may find that the assessing or the appellate authority has committed some error in excluding some evidence. In that event, I do not think that the revising authority will be transgressing its ambit of powers in directing the appellate or the revising authority to take fresh evidence. It is, however, to be borne in mind that the revisional jurisdiction is not a continuation of the original proceedings. That is a basic distinction. I am, however, not inclined to take the extreme view that no additional evidence can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting the errors of inferior authorities, but the power of review is directed towards a correction by an authority of its own error or some mistaken decision arising from reasons apart from its own error. The powers of review, for example, are exercisable under Order 41, rule 1, Civil Procedure Code, not only on the errors apparent on the face of the record but also in cases where new evidence has been discovered by a party which has not been negligent. It appears to me that section 21 of the Act confers a power which may be equated with what is known as a power of review under the Code of Civil Procedure although the ambit of that power, known as power of reassessment in section 21 of the Act, is much wider than the scope of the power of review under the Code of Civil Procedure. Nevertheless, the power is there and it is distinguishable from the power of revision as well as from the powers of an appellate court. The grounds upon which a reassessment may take place may not be identical with those on which an appellate court or a revisional court may order reassessment. Even the effect of the order of a revising authority or an appellate authority can be a reassessment. That would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not so wide as to enable the revising authority to correct the assessment based on the information subsequently gathered. So far as the proposition that the revising authority cannot, in exercise of its revisional jurisdiction, undertake any enquiries it deems necessary or just, the view taken by their Lordships of the Supreme Court in the case of K.M. Cheria Abdulla[1965] 16 S.T.C. 875. fully supports it. It was, however, contended by Mr. Raja Ram Agarwala, appearing on behalf of the department, that in this case reliance was placed upon the case of Louis Dreyfus and Company Ltd.[1952] 3 S.T.C. 19. and upon the Full Bench decision of the Kerala High Court in M. Appukutty v. State of Kerala[1958] 9 S.T.C. 70; A.I.R. 1959 Ker. 16. But, the learned counsel contended that the decision of the Full Bench of the Kerala High Court in Appukutty's case(4), having been reversed by the Supreme Court of India in State of Kerala v. M. Appukutty[1963] 14 S.T.C. 242. , the earlier case could not be relied upon on behalf of the assessee. I do not think that this contention is sound. The Supreme Court of India in M. Appukutty's case(5) did not disapprove of everything which had been said in ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he record as it exists. All that we can say from the language used is that it appears that ordinarily the record, as it exists, will be perused. The limit upon the discretionary power to send for the record and then to pass such order as the revising authority "may think fit" is to be found only in the purposes for which the revisional power itself is conferred. I do not think that it is either desirable or necessary or permissible for us to cut down the scope of the purposes so broadly stated, although it is both desirable and imperative not to extend those purposes so far as to impinge upon other powers conferred for somewhat different purposes. In my opinion, the limit is found when some power to take additional evidence is exercised for a purpose which more appropriately or properly falls within that of an appeal or reassessment. In other words, we have also to look at section 9 of the Act, dealing with appeals as well as with section 21 of the Act, dealing with powers and circumstances in which assessment or reassessment of escaped turnover may take place, in order to discover the true ambit of powers of the revising authority under section 10 of the Act. If, upon a set of cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther material in cases where the record is insufficient to enable an Assistant Commissioner (Judicial) to pronounce his judgment. In other words, it provides for supplementing the material already on the record or clarifying it in those cases in which the Assistant Commissioner (Judicial) who hears the appeals considers the existing evidence insufficient for pronouncing his judgment. It is pointed out that in rule 69, containing the corresponding procedure for the disposal of a revision by a Judge (Revisions), there is no corresponding power of the Judge (Revisions) mentioned. Reference to these rules was made in order to convince us that the Judge (Revisions) has no power whatsoever of taking any additional evidence and bringing fresh material upon the record under any circumstances. Speaking for myself, I am unable to arrive at such a conclusion merely because rule 69 does not contain or mention any power corresponding to that mentioned in rule 68(8) of the Rules. This omission from rule 69 may be due to the fact that ordinarily the revising authority is not expected to take evidence. The omission has to be considered in the light of the specific provisions of rules 4 and 75 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh proceedings under section 21 have to be taken. I find, from the facts of the case before us, that the matter which came up before the revising authority arose out of a proceeding under section 21 of the Act. Those proceedings, relating to the assessment years 1955-56 and 1956-57, succeeded before the Sales Tax Officer, but the appellate authority considered the evidence insufficient to maintain the assessment orders of the Sales Tax Officer. Subsequently, after the expiry of a period of four years from the passing of the assessment order fresh evidence came into existence in the shape of the statement of the dealer in the light of which the orders of the appellate authority became erroneous. The orders of the appellate authority were legal and proper upon the evidence on the record. If, however, fresh evidence, which came into existence afterwards, had been before the appellate authority it would have probably itself decided differently. There is, however, no provision under the Sales Tax Act expressly for the exercise of a power of review by the appellate authority. The only power for getting the whole matter reconsidered in the light of fresh material is the power of reassessm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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