TMI Blog1970 (8) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Madras General Sales Tax Act, which was inconsistent with the power to dismiss for default, expressly given by the Regulations framed under the Act. A contrary view was expressed by a different Bench subsequently*. In view of this and to avoid embarrassment to the Sales Tax Appellate Tribunals, these cases have been heard by the Full Bench. The Appellate Tribunal has been set up pursuant to section 30 of the Madras General Sales Tax Act, and by sub-section (4), the Tribunal has been empowered to make, with the express sanction of the Government and by notification, regulations consistent with the provisions of the Act and the Rules made thereunder. Such regulations are for regulating the constition and the procedure and the disposal of the Tribunal's business. In exercise of this power, the Tribunal framed the Madras Sales Tax Appellate Tribunal Regulations, 1959. Regulation 9 is: "(1) After the appeal has been registered, notice of the day fixed for hearing under regulation 8 shall be delivered or issued to the party in Form C in the Schedule. The notice shall state that if he does not appear on the day so fixed or on any other day to which the hearing may be adjourned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... content if they are construed to limit them to orders on merits. The types of orders on the appeal on its merits appear to be exhausted by the variety mentioned in sub-clauses (i) and (ii) of clause (a) of sub-section (3). "Such other orders" in sub-clause (iii) can but be those other than the orders on merits within the purview of sub-clauses (i) and (ii). In fact, in answer to a question, counsel for the assessee could not point out what kind of orders on merits are left out by sub-clauses (i) and (ii) which could be made under sub-clause (iii). We ourselves have not been able to see what other orders on merits of the appeal can be brought under the last sub-clause on the ground that they will be outside the purview of the first two sub-clauses. The phraseology used by sub-clause (iii) is so wide, as it seems to us, to include orders which are not on merits of the appeal, as for instance, dismissal for default. It is significant in this connection to note that subclause (iii) does not use the phrase "thereon". The conferment of appellate powers on the Tribunal by section 12-A (4) of the Madras General Sales Tax Act, 1939, was in different words: "The Appellate Tribunal shall, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Tribunal is bound to give a proper decision on questions of fact as well as law which can only be done if the appeal is disposed of on the merits and not dismissed owing to the absence of the appellant." But the scheme of the Madras General Sales Tax Act, 1959, is entirely different. It contains no provisions for reference to the High Court on the question of law arising from the order of the Tribunal. The Act provides for an appeal from the orders of the assessing authority, and a further appeal on facts, to the Tribunal, whose decision on facts will be final. But anyone who is aggrieved, whether the assessee or the State, against the orders of the Tribunal, is given a right of revision to the High Court, on a question of law. The jurisdiction of the High Court in revision is not merely advisory. It has the power to decide such a question finally which should be given effect to by the department. We are unable to agree that the right of revision is rendered nugatory, if the Tribunal dismissed an appeal for default. As a matter of fact, one of the assessees before us has filed a revision from the order dismissing his appeal. It is open to the assessee who feels aggrieved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section(2) the Board's jurisdiction under the section is barred if the time for appeal to the Tribunal does not become barred or the order has been made the subject of an appeal to the Appellate Tribunal or of a revision before the High Court. By making reference to this section, it is contended that this provision would indicate that the Tribunal should dispose of the appeal only on the merits, and not otherwise. We fail to see how this follows from section 34. Where the Tribunal passed an order on the merits of an appeal, it bars the Board's jurisdiction. Where, however, the Tribunal passed an order dismissing an appeal for default of appearance, can it be regarded as an order which is the subject-matter of a revision within the meaning of section 34(2)(b). If the answer is in the affirmative, the consequence prescribed by that provision will follow. But that does not anyway, in our opinion, affect the construction of sub-section (3) of section 36. A provision providing for dismissal for default in appearance or prosecution is undoubtedly one relating to procedure. Chenniappa Mudaliar v. Commissioner of Income-tax[1964] 53 I.T.R. 323. supports this view. The court referred w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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