Asher Textiles Ltd. vs Commercial Tax Officer and Another

K. Govindarajan, J.—The petitioner has filed the above writ petition seeking to quash the proceedings of the Secretary of the Sales Tax

Appellate Tribunal (Additional Bench), dated July 7, 1997, to direct the second respondent to dispose of the rectification petition on merits which

was filed on May 24, 1997 by the petitioner.

The petitioner''s appeal has been dismissed by the Sales Tax Appellate Tribunal (Additional Bench), Coimbatore. Thereafter, the petitioner

made an application u/s 55 read with Section 9(2) of the Tamil Nadu General Sales Tax Act, 1959 on May 21, 1997. The said application had

been rejected by the secretary of the Tribunal stating that there is no error on the face of the order passed by the Appellate Tribunal (Additional

Bench) and so the petition had been rejected.

The learned counsel appearing for the petitioner has rightly submitted that the secretary has no jurisdiction or power to reject the applications

filed before the Tribunal on merits stating that the petition for rectification cannot be considered as there is no error on the face of the order passed

by the Tribunal. The learned Government Advocate while defending the said order submitted that the petitioner''s application filed u/s 55 is not

maintainable as Section 55 does not contemplate such a petition before the Tribunal, and so the secretary is correct in rejecting the said

application.

It is not in dispute that the Secretary of the Tribunal had rejected the petitioner''s application filed u/s 55 read with Section 9(2) of the Tamil

Nadu General Sales Tax Act. Under the Tamil Nadu Sales Tax Appellate Tribunal Regulations, 1959 the secretary has been defined under

Regulation 2(ix) of the said regulation which reads as follows :

Definitions.--In these Regulations, unless there is anything repugnant in the subject or context,--

...............

(ix) ''Secretary'' means the person who is for the time being discharging the functions of the secretary to the Appellate Tribunal and includes the

persons appointed to discharge the functions of the secretaries to the Additional Benches of the Appellate Tribunal.

Under Regulation 7, the secretary after receipt of the appeal shall examine whether the person presenting such appeal has an authority to do so,

and whether it confirms to the provisions of the Act, Rules and the Regulations. Under Regulation 7(2), if the secretary opines that appeal does not

prima facie fall u/s 36(1) of the Act, he has to report to the Chairman who may either reject the appeal or order the papers to be returned to the

party or fix the date for hearing the matter for Tribunal after giving notice to the parties and State representative and thereupon the provisions of

Regulation 7(5) shall apply. If the appeal does not confirm to the requirements of the Act, the rules and the regulations, the secretary is empowered

under Regulation 7(3) to call upon the party by a notice in form A to remedy the defects with a reasonable period.

From the abovesaid provision, it is clear that the secretary has no power to reject any petition filed by the parties. As pointed out earlier from

the Regulation 7(2), even if appeal is not maintainable, the same has to be referred to the Chairman who has to either reject the same or order the

paper to be returned to the parties. But in the present case, the secretary himself has rejected the application filed by the petitioner u/s 55 of the

Tamil Nadu General Sales Tax Act read with Section 9(2) of the Act, on the ground that there is no error passed by the Tribunal. The same was

not rejected by the secretary as it will not lie to the Tribunal. Even then the said order has to be passed only by the Tribunal as secretary has no

jurisdiction to reject any petition, but he can return to the parties.

So, the submission of the learned Government Advocate that the petition filed by the petitioner on May 24, 1997 is not maintainable and so the

secretary is correct in rejecting the application cannot be countenanced. Hence, the impugned order dated July 7, 1997 is set aside and the

Tribunal is directed to consider the said application and pass orders. The Tribunal is at liberty to go into the question regarding the maintainability

of the petition also.

With the above observations, the writ petition is allowed. No costs. Consequently, connected W.M.P. is closed.