P. Haji Abdul Wahab and Brothers vs The Government of Madras: No. 2

Jagadisan, J.—T. C. M. P. No. 120 of 1961 is an application for review of our judgment in T. C. No. 146 of 1959, which arose out of T.

R. A. No. 1 of 1959 on the file of the Sales Tax Appellate Tribunal, Madras. T. R. A. No. 1 of 1959 was itself an application for review filed by

the applicant herein before the Tribunal to review its judgment in T. A. No. 493 of 1958 on its file. As against the decision in T. A. No. 493 of

1958 the department preferred T. C. No. 28 of 1959 in this Court, and that was dismissed by an order dated 6th September, 1961 Since

reported as P. Haji Abdul Wahab and Brothers v. Government of Madras [1962] 13 S.T.C. 824. T. C. No. 146 of 1959 was also dismissed by

us by the same order Since reported as P. Haji Abdul Wahab and Brothers v. Government of Madras [1962] 13 S.T.C. 824. The ground for

review urged in this application is that we failed to consider certain documentary evidence produced before us during the course of hearing of T. C.

No. 28 of 1959 and T. C. No. 146 of 1959. The petitioners submit that there is an error apparent on the face of the record which calls for a

review.

The Appellate Tribunal dismissed the application for review, T. R. A. No. 1 of 1959 for valid and cogent reasons. The evidence which was

produced by the petitioner at the time of the hearing of the review application before the Tribunal was not made available to the Tribunal when the

main appeal was heard. The Tribunal quite rightly observed in its order in T. R. A. No. 1 of 1959 that it cannot sit in appeal over its own decision,

and that the scope of an application for review u/s I2-A(6) was limited.

In T.C. No. 146 of 1959 the only question was whether the Tribunal went wrong in dismissing the application for review preferred before it by

the petitioner. The scope of the power of review of this Court in matters disposed of in revision u/s I2-B of the Madras General Sales Tax Act is

that provided for under Sub-section (7) of that section. That is as follows :

(a) The High Court 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.

Construing the provisions of Section 12-A(6) which defines the powers of review of the Appellate Tribunal in precisely the same words as in

Section 12-6(7), the Supreme Court of India in the decision in Chandaji Kubaji and Co. v. State of Andhra Pradesh [1960] 11 S.T.C. 451,

observed thus at page 455 :

It is, we think, doing great violence to language to say that an intentional or deliberate withholding or suppression of evidence in support of a plea

or contention or a basic fact urged before the Tribunal, is comprehended within the expression ''facts which were not before it (Tribunal) when it

passed the order.'' To so construe the section is to put a premium on deliberate negligence and fraud and amounts to allowing a party to profit from

its own wrong. We do not think that such a construction follows from the language used, which is more consistent with the view that the provision

in Section I2-A (6)(a) permits a review when through some oversight, mistake or error the necessary facts, basic or evidentiary, were not present

before the Court when it passed the order sought to be reviewed. It is entirely wrong to think that the sub-section permits a party to play hide, and

seek with a judicial tribunal....

In exercising the revisional powers u/s I2-B of the Act, this Court will not permit any new evidence to be placed before it for the first time either

at the instance of the assessee or of the State. The evidence which the petitioner wanted to rely upon was produced even before the Tribunal only

at a late stage when the application for review came to be filed. It was within the discretion of the Tribunal to entertain the review application or

not. The Tribunal dismissed the application for review and in our opinion quite rightly. The present application for review is not based on the

ground that some facts are now available and those facts could not be placed before the Court at the time when the order sought to be reviewed

was passed. Learned counsel for the petitioner practically conceded this position. But he however argued that there is a mistake apparent on the

face of the order which can be reviewed or rectified, under Rule 18 of the Madras General Sales Tax Rules. That rule reads thus:

(i) An assessing, appellate or revising authority or the Appellate Tribunal may, at any time within three years from the date of any order passed by

it, rectify any mistake apparent from the record...

Rule 18, in our opinion, cannot be invoked as the expression ""revising authority"" used therein cannot apply to this Court sitting in revision u/s I2-

B. Section I2-B uses the expression ""the High Court"". The revising authority mentioned in Rule 18 can only refer to the authorities mentioned in

Section 12 of the Act, namely, the Commercial Tax Officer, the Deputy Commissioner and the Board of Revenue.

It was next contended on behalf of the petitioners that the provisions of Order XLVII, Rule 1, of the CPC can be called in and that under that

provision a patent error can be corrected by way of review. In view of the special provisions and limited scope of review provided for u/s 12-6(7)

of the Act, the general power of review of this Court as a civil Court cannot extend to the proceedings under the Sales Tax Act. We are not

expressing any opinion whether the provisions of Order XLVII, Rule 1, of the CPC can at all be applied. We need not consider as to what would

be the position in the absence of the special provision for review enacted u/s 12-6(7) of the Act. But it is quite clear that the scope and ambit of the

power of review exercisable by this Court to review its orders passed u/s I2-B is governed only by Section I2-B (7). There is no scope for

enlarging such a power for resorting to the provisions of the Civil Procedure Code. We are of opinion that the petitioner has failed to make out a

case for review, and the application (T. C. M. P. No. 121 of 1961) therefore fails and is dismissed with costs. Counsel''s fee Rs. no.

T. C. M. P. No. 121 of 1961 is an application for stay of further proceedings pending the review application. As the review application has

been dismissed, this petition also is dismissed..

T. C. M. P. No. 125 of 1961 is an application for rehearing T. C. No. 146 of 1959. There is no provision of law under which this could be

done and this application also is accordingly dismissed, but without costs.

T. C. M. P. No. 136 of 1961-Dismissed.