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Oversea Mica Exports Vs. Secretary, Sales Tax Appellate Tribunal and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 1416 of 1965
Judge
Reported in[1970]25STC425(AP)
AppellantOversea Mica Exports
RespondentSecretary, Sales Tax Appellate Tribunal and anr.
Appellant AdvocateS. Dasaratharama Reddi, Adv.
Respondent AdvocatePrincipal Government Pleader and ;V.R. Reddy, Adv.
DispositionPetition allowed
Excerpt:
- - 63,205.21. after an unsuccessful appeal to the assistant commissioner for commercial taxes, guntur, he preferred a further appeal to the sales tax appellate tribunal on 6th march, 1968, under section 21 of the sales tax act. the regulation, therefore, is ultra vires of the powers of the tribunal as well as inconsistent with the act and, therefore, the tribunal has no jurisdiction to dismiss the appeal for default. the tribunal, in exercise of its appellate jurisdiction, cannot evade the discharge of the statutory duty by dismissing the appeal for default on the failure of the appellant and his counsel to appear before it. any dealer may prefer a revision to the high court against an order of the appellate tribunal on the ground that the appellate tribunal has either decided.....madhava reddi, j.1. the only question that arises for consideration in this petition for the issue of a writ of certiorari is whether the sales tax appellate tribunal has jurisdiction to dismiss an appeal filed before it under section 31 of the andhra pradesh general sales tax act (hereinafter referred to as the act) for default.2. the petitioner herein was assessed to sales tax for the year 1956-57 by the deputy commercial tax officer, gudur, on a turnover of rs. 63,205.21. after an unsuccessful appeal to the assistant commissioner for commercial taxes, guntur, he preferred a further appeal to the sales tax appellate tribunal on 6th march, 1968, under section 21 of the sales tax act. on 29th june, 1968, when the appeal was posted for hearing, as the appellant and his counsel were absent,.....
Judgment:

Madhava Reddi, J.

1. The only question that arises for consideration in this petition for the issue of a writ of certiorari is whether the Sales Tax Appellate Tribunal has jurisdiction to dismiss an appeal filed before it under Section 31 of the Andhra Pradesh General Sales Tax Act (hereinafter referred to as the Act) for default.

2. The petitioner herein was assessed to sales tax for the year 1956-57 by the Deputy Commercial Tax Officer, Gudur, on a turnover of Rs. 63,205.21. After an unsuccessful appeal to the Assistant Commissioner for Commercial Taxes, Guntur, he preferred a further appeal to the Sales Tax Appellate Tribunal on 6th March, 1968, under Section 21 of the Sales Tax Act. On 29th June, 1968, when the appeal was posted for hearing, as the appellant and his counsel were absent, the Tribunal dismissed the appeal for default. The petition for restoration of this appeal was also dismissed on 17th April, 1969. It is not necessary to deal with the several other contentions in this writ petition in the view we are taking on the main contention raised by the learned counsel for the petitioner.

3. Any dealer objecting to an order passed or proceeding recorded by any prescribed authority under Section 19 of the Act or by a Deputy Commissioner suo motu under Sub-section (4-C) of Section 14 or under Sub-section (2) of Section 20, may prefer an appeal to the Tribunal under Section 21 of the Act. The appeal has to be filed within sixty days from the date on which the order or proceeding is served on the dealer. The Appellate Tribunal is, however, given power to condone the delay in preferring the appeal on sufficient cause being shown. The memorandum of appeal is required to be in the prescribed form and accompanied by a fee not exceeding Rs. 100. The petitioner preferred an appeal in compliance with the provisions of Sub-sections (1), (3) and (6) of Section 21 of the Act. Sub-sections (4) and (5) of Section 21 lay down as to how the Tribunal should dispose of the appeal and also as to what the powers of the Appellate Tribunal are Sub-sections (4) and (5) of Section 21 read as follows :

Section 21. (4)(a) The Appellate Tribunal may, after giving both parties to the appeal, a reasonable opportunity of being heard-

(i) confirm, reduce, enhance or annul the assessment or the penalty or both; or

(ii) set aside the assessment or the penalty, or both, and direct the assessing authority to pass a fresh order after such further inquiry as may be directed; or

(iii) pass such other orders as it may think fit:

Provided that if the appeal involves a question of law, a decision on which is pending in any proceeding before the High Court or the Supreme Court, the Appellate Tribunal may defer the hearing of the appeal before it, till such proceeding is disposed of.

21. (5) Before passing any order under Sub-section (4), the Appellate Tribunal may make such inquiry as it deems fit or remand the case to the appellate authority against whose order the appeal was preferred or to the assessing authority concerned, for an inquiry and report on any specified point or points,

4. The Tribunal is given power Under-Sections 3 and 4 of the Act to make regulations consistent with the provisions of the Act and the rules made thereunder for regulating its procedure and the disposal of its business. These regulations are required to be published in the Andhra Pradesh Gazette. Section 3 of the Act so far as it is relevant for our present purpose reads as follows :

Section 3. (1) The State Government shall appoint an Appellate Tribunal consisting of a Chairman and two other members to exercise the functions conferred on the Appellate Tribunal by or under this Act. The Chairman shall be a judicial officer not below the rank of a District Judge and of the other two members one shall be an officer of the State Government not below the rank of a Deputy Commissioner of Commercial Taxes, and the other shall be a Chartered Accountant, or a person possessing the degree of M.Com. or B.Com. (Hons.) of any recognised University in India for at least ten years.

(4) The Appellate Tribunal shall, with the previous sanction of the State Government make regulations consistent with the provisions of this Act and the rules made thereunder, for regulating its procedure and the disposal of its business.

(5) The regulations made under Sub-section (4) shall be published in the Andhra Pradesh Gazette.

5. In exercise of these powers the Tribunal has made regulations in Government Memorandum No. 34908-B/S/57-3, Revenue, dated 24th July, 1957. Under Clause 9 of the Regulations the power to dismiss an appeal for default and for readmission of appeal so dismissed is specially vested with the Tribunal in the following words :

9. (1) After the appeal has been registered, notice of the day fixed for hearing under regulation 8 in Form 'C shall be delivered or issued by registered post to the party. 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, the appeal will be dismissed for default or disposed of on merits, ex parte.

(2) Where an appeal, application or petition has been dismissed for default or disposed of ex parte, the appellant, applicant or petitioner may apply to the Tribunal for readmission of the appeal, application or petition; and where it is shown to the satisfaction of the Tribunal that he was prevented by sufficient cause from appearing when the appeal, application, or petition was called on for hearing, the Tribunal may readmit the appeal, application or petition on such terms as it thinks fit;

(3) An application for readmission of an appeal, application or petition dismissed for default or disposed of ex parte, shall be made within thirty days from the date of communication of the order of dismissal.

6. In purported exercise of this power, the Tribunal has dismissed the appeal preferred by the petitioner and on taking the facts and circumstances of the case into consideration refused to readmit the appeal.

7. Mr. Dasaratharama Reddi, the learned counsel for the petitioner, argues that Section 21(4) of the Act does not empower the Tribunal to dismiss an appeal, duly filed by a dealer and admitted by the Tribunal, for default. It is enjoined to dispose of the same on merits. The regulation framed by the Tribunal in exercise of its power under Sub-section (4) of Section 3 cannot clothe the Tribunal with a power to dismiss the appeal for default. The regulation is inconsistent with the provisions of the Act. It is also contended that Section 3(4) vests jurisdiction in the Tribunal to make regulations only to regulate its procedure and the disposal of its business and that Clause 9 of the Regulation is beyond the scope of the authority vested in the Tribunal in this behalf. The Regulation, therefore, is ultra vires of the powers of the Tribunal as well as inconsistent with the Act and, therefore, the Tribunal has no jurisdiction to dismiss the appeal for default. In spite of the non-appearance of the appellant and his counsel on the date of the hearing of the appeal, the Tribunal ought to have disposed of the appeal on merits. We find ourselves in entire agreement with this contention.

8. A dealer under the Andhra Pradesh General Sales Tax Act is given a right of appeal before the Appellate Tribunal under Section 21 of the Act against certain orders of the prescribed authority made on appeal under Section 19 of the Act and also against certain orders of the Deputy Commissioner. The matter of assessment of tax on the turnover of a dealer under the Andhra Pradesh General Sales Tax Act is not limited in its effect to the dealer alone. It affects the revenues of the State. The assessment of the sales tax cannot, therefore, be equated to a lis between two private individuals. As it is a matter affecting the revenue of the State the authorities constituted under the Act, including the Tribunal, are clothed with certain statutory duties under the Act and in discharge of these duties even to act suo motu and revise the assessments. The Tribunal may on being seized with a matter when an appeal is filed, is empowered even to enhance the assessment and not merely to confirm or annul the same. It is against this background that we have to judge the powers of the Appellate Tribunal enumerated under Section 21(4) of the Act. Under Sub-Section (4) of Section 21, the Appellate Tribunal may not only confirm, reduce, enhance or annul the assessment or the penalty or both but may also set aside the assessment or the penalty or both and direct the assessing authority to pass a fresh order after further enquiry. In addition to these powers under Sub-Clause (iii) of Section 21(4)(a) the Tribunal is given power to pass such further orders as it may deem fit. A reading of Sub-clauses (i) and (ii) of Section 21(4)(a) discloses that the power vested in the Tribunal relates to the merits of the assessment order and on an examination of the merits of the order under appeal, it may confirm, reduce, enhance or annul the assessment or the penalty or direct a fresh assessment after further enquiry. Sub-clause (iii) occurring thereafter must, in the context, be read ejusdem generis with the other two clauses. If the other two clauses require the Tribunal to examine the merits of the assessment and pass the order enumerated therein, Sub-clause (iii) must likewise refer to the passing of such order as it may think fit on examination of the merits of the assessment order. An appeal before the Appellate Tribunal may raise questions of fact and law and any decision thereon may result in the reduction of the tax or enhancement of the same. But once an appeal is before the Tribunal, the Appellate Tribunal has jurisdiction even to enhance the tax, of course, after giving a reasonable opportunity to the appellant-assessee of being heard. No sooner than the appeal is before the Tribunal the assessee is exposed to even enhancement of the tax and that is a power which is specifically vested in the Tribunal under Sub-clause (ii) of Section 21(4)(a). In fact, it is the duty of the Tribunal on an examination of a memorandum of appeal filed before it to see if the facts of the case warrant any enhancement. As already pointed out, in disposing of an appeal, the authorities under the Act do not discharge the duty of disposing of a 'Us' between two private parties. Just as they are required to see that the assessee is not burdened with an amount of tax not envisaged by the Act or on the facts of the case, they are also enjoined to see that the tax legally leviable under the Act does not escape assessment by any erroneous order of the Subordinate authorities. The Tribunal, in exercise of its appellate jurisdiction, cannot evade the discharge of the statutory duty by dismissing the appeal for default on the failure of the appellant and his counsel to appear before it. After preferring the appeal, the appellant may realise that far from the tax imposed by the subordinate authorities being reduced on appeal, the Appellate Tribunal may enhance it and therefore may deliberately absent himself. By such deliberate absence of the appellant and his counsel, the Appellate Tribunal cannot be divested of its jurisdiction to enhance the tax. This necessarily implies that even in the absence of the appellant and his counsel, the Tribunal is required to examine the assessment of tax and penalty on merits, irrespective of the fact whether the appellant chooses to be present or not. If under Sub-clause (iii) the Tribunal could be said to have jurisdiction to dismiss an appeal for default of appearance of the appellant and his counsel then it would be rendering nugatory the power and duty, i.e., the power to enhance vested in the Appellate Tribunal under Sub-clause (ii) of Section 21(4) (a) of the Act. Viewed in the larger context of the duty of the Appellate Tribunal to safeguard the revenue realisable under the Act and the specific power vested in it to enhance the assessment, Sub-clause (iii) cannot be read so as to clothe the Tribunal with the power to dismiss the appeal for default.

9. A similar view has been taken by the Allahabad High Court in Hindustan Metal Works v. Sales Tax Officer [1964] 15 S.T.C. 116 in the following words:

The intention of the Legislature in enacting Section 9 of the U.P. Sales Tax Act, 1948, is to make the appellate court under the Sales Tax Act a watch-dog in the general public interest and particularly on behalf of the public revenues in so far as taxes are gathered through the instrumentality of the Sales Tax Act. The intention that the appeal once filed by the assessee should be disposed of only on its merits is clear from the language used in Section 9 which rules out the possibility of the dismissal of an appeal for default.

10. The scope of Sub-clause (iii) of Section 21(4)(a) may also be viewed from another angle. The order of the Appellate Tribunal made under Section 21(4)(a) is not final. It is subject to a revision to the High Court as provided under Section 22 of the Act. Any dealer may prefer a revision to the High Court against an order of the Appellate Tribunal on the ground that the Appellate Tribunal has either decided erroneously or failed to decide any question of law. It must have been necessarily intended by this provision that whenever a question of law arises in an appeal pending before the Tribunal, the Tribunal must decide the same. Any failure to decide that question of law by dismissing the appeal for default would be liable to be revised by the High Court under Section 22 of the Act, for Section 22 does not make an exception in cases where the appellant or his counsel do not appear. Once the High Court finds that a question of law arose before the Tribunal and the Tribunal, for whatever reason it may be, fails to decide that question of law, as envisaged by Section 22, the High Court would have to necessarily exercise its revisional jurisdiction. It cannot be said that under Sub-clause (iii) of Section 21(4)(a) the Tribunal is vested with the jurisdiction to dismiss an appeal for default and it acts according to law in so dismissing the appeal for default and yet under Section 22 of the Act, the High Court should revise that order as the Tribunal has failed to decide a question of law for non-appearance of the appellant and his counsel. If the Tribunal has got the power to dismiss an appeal for default, then such dismissal cannot be erroneous and if it is not erroneous the revisional power of the High Court could not be invoked. If Sub-clause (iii) were to be read so as to mean that the Tribunal has the power to dismiss an appeal for default then the High Court in exercise of its revisional jurisdiction cannot interfere with such an order. But yet the question of law arising in an appeal before the Tribunal not having been decided by the Tribunal, the High Court would be required to interfere in revision with the order of assessment. Such could not be the intention of the Legislature. The provisions of Section 21(4) of the Act which deal with the powers of the Appellate Tribunal in disposing of an appeal and Section 22 of the Act which deals with the revisional power of the High Court in respect of the orders of the Tribunal, must be read harmoniously. So read, at least in such cases, where questions of law arise in an appeal before the Tribunal, the Tribunal must be deemed to have no power to dismiss the appeal for default of appearance of the appellant for, any failure to decide the questions of law arising in the appeal, even for non-appearance of the appellant, would render the order of the Tribunal liable to be set aside on revision. In view of the wording of Section 21(4) of the Act, we are of the opinion that the power to dismiss for default cannot be said to be vested in the Appellate Tribunal even in respect of appeals in which questions of fact arise. As already pointed out, the Tribunal once seized with the jurisdiction on the admission of an appeal may even enhance the assessment or penalty which could be done only on an examination of the merits of each case. The expression similar to the one contained in Sub-clause (iii) of Section 21(4)(a), namely, 'pass such orders as it may think fit' also occurring in Section 33(4) of the Income-tax Act came up for consideration before their Lordships of the Supreme Court in the Commissioner of Income-tax, Madras v. Chenniappa [1969] 1 S.C.W.R. 680. Grover, J., speaking for the court observed as follows :

The scheme of the provisions of the Act relating to the Appellate Tribunal apparently is that it has to dispose of an appeal by making such orders as it thinks fit on the merits. It follows from the language of Section 33(4) and in particular the use of the word 'thereon' that the Tribunal has to go into the correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant. This can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear

Their Lordships referring in particular to the word 'thereon' in Section 33(4) held that the words ' 'pass such orders as the Tribunal thinks fit' include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by Section 31 of the Act. The provisions contained in Section 66 about making a reference on questions of law to the High Court will be rendered nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default, without making any order thereon in accordance with Section 33(4). The position becomes quite simple when it is remembered that the assessee or the Commissioner of Income-tax, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of Section 66. So far as the questions of fact are concerned the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under Section 33(4). It follows from all this that the Appellate 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....Thus looking at the substantive provisions of the Act there is no escape from the conclusion that under Section 33(4) the Appellate Tribunal has to dispose of the appeal on the merits and cannot short-circuit the same by dismissing it for default of appearance.

11. The decision in the above case applies with equal force to the case under consideration in the writ petition. Under the Andhra Pradesh General Sales Tax Act, 1957, a reference as is contemplated by Section 66 of the Income-tax Act is not provided; instead a dealer, as already pointed out, is given a right of revision against an order of the Tribunal where the Tribunal has decided the question erroneously or where there is a failure to decide a question of law arising. There is no revision against a question of fact. Evidently, the Act contemplates the Tribunal to be a final authority on questions of fact. The proper appreciation of a question of law, in very many cases, may not be possible unless there is a final decision on a question of fact by the Tribunal. Under Sub-section (9) of Section 21 the Tribunal's order is final subject to the provisions of Section 22. Unless it is held that the Tribunal is bound to give a decision on the merits both on questions of law and fact and that it cannot dismiss an appeal for default, as observed by the Supreme Court in the Commissioner of Income-tax, Madras v. Chenniappa Mudaliar [1969] 1 S.C.W.R. 680, the right of revision provided to a dealer before the High Court may be rendered nugatory and all that the High Court in such circumstances may have to do is to hold that the Tribunal ought not to have dismissed the appeal for default and ought not have failed to dispose of the questions of law arising before it and in that view, direct the Tribunal to dispose of the matter afresh.

12. The learned Government Pleader however contended that the decision in Commissioner of Income-tax, Madras v. Chenniappa Mudaliar [1969] 1 S.C.W.R. 680 turns upon the wording of Section 33(4) of the Income-tax Act and in particular on the word 'thereon' occurring therein. However, in our opinion the absence of the word 'thereon' in Section 21(4) does not make any difference. The power exercisable by the Appellate Tribunal under Section 21(4) of the Andhra Pradesh Sales Tax Act is with respect to the appeal filed under Section 21 and the powers of the Appellate Tribunal enumerated in the Sub-section are with reference to the said appeal. The Tribunal may pass such order as it thinks fit only on the appeal. In the context in which Sub-clause (3) occurs, we are of the view that the powers of the Appellate Tribunal in regard to the dismissal of an appeal under Section 21(4) of the Act are analogous to the powers of the Appellate Tribunal under the Income-tax Act and does not clothe it with the power to dismiss an appeal for default.

13. In this connection, the Government Pleader relied upon a Full Bench decision of this court in Palaniswami Chetty v. Salla Muthamma (1966) 2 An. W.R. 349 in which their Lordships were considering the question whether under Rule 22(8) framed under the Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Rules, 1981, which reads as follows:

The Controller or the appellate authority deciding the dispute shall record a brief note of the evidence of the parties and witnesses who attend, and upon the evidence so recorded, and after consideration of any documentary evidence produced by the parties, a decision shall be given in accordance with justice, equity and good conscience by the Controller or appellate authority. The decision given shall be reduced to writing. If any party duly summoned to attend does not attend, the dispute may be decided ex parte', the rent Controller is empowered to dismiss an appeal for default.

14. The decision to our mind cannot be of much assistance firstly because the proceedings under the said Act bears no analogy to the assessment proceedings and the appeals preferred under the Andhra Pradesh General Sales Tax Act. Under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the dispute is entirely between a landlord and a tenant. It is a 'Us' between the two parties as regards their rights and obligations arising under the special enactment and the Rent Controller is called upon to adjudicate on the rights of the parties and the Rent Controller or the appellate authority is given power to give a decision in accordance with justice, equity and good conscience. On the construction of the provisions of the said rule and the enactment, their Lordships were of the view that the appellate authority had jurisdiction to dismiss a petition or appeal for default of appearance and they also held that such a decision is a decision on the appeal. Here we are concerned with the powers of the Appellate Tribunal under the Sales Tax Act which is enjoined to see that assessments are made in accordance with the provisions of the Act in the general interest of the public and in the interests of the public revenue. That apart the wording of the rules and the scheme, the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act under which they were framed, are totally different and the object sought to be achieved by them bear no analogy to the one sought to be achieved by the Andhra Pradesh Sales Tax Act.

15. We are, therefore, clearly of the view that Section 21(4) of the Act does not authorise the Appellate Tribunal to dismiss an appeal for default of appearance of the appellant; it must dispose of the appeal on merits irrespective of the fact whether the appellant appears on the date of hearing or not.

16. The learned Government Pleader sought to justify the power of the Tribunal to dismiss an appeal also on the ground that regulation 9(1) framed under Section 3(4) of the Act by the Tribunal, authorised the Tribunal to dismiss an appeal for default. It cannot be gainsaid that any rule or regulation framed in exercise of the power vested under the Act can neither contravene the provisions of the Act nor be inconsistent therewith. A power that is vested in the Tribunal can neither be abridged nor enlarged by a regulation framed thereunder, nor can a Tribunal be exonerated by a regulation from the performance of a duty required of it under the Act. The regulation cannot travel beyond the scope of the Act. If the power to dismiss an appeal for default cannot be found to be vested in the Appellate Tribunal under Section 21(4) of the Act, the Tribunal cannot be clothed with that power under the Regulation for any such vesting of power under the Regulation would be derogatory to and inconsistent with Section 21 of the Act and as such must be struck down. In Abdul Subhan Saheb & Sons v. Mysore Sales Tax Appellate Tribunal [1965] 16 S.T.C. 17 a Bench of the Mysore High Court considering regulation 8(2) of the Appellate Tribunal Regulations, 1957, which clothed the Appellate Tribunal under the Mysore Sales Tax Act with a similar power held:

Regulation 8(2) of the Appellate Tribunal Regulations, 1957, to the extent it purports to empower the Appellate Tribunal to dismiss an appeal before it for default of appearance of the appellant or his Advocate is ultra vires of Section 22(4) of the Mysore Sales Tax Act, 1957.

17. Section 22(4) of the Mysore Sales Tax Act also authorised the Appellate Tribunal to pass such orders thereon (appeal) as it thinks fit. Manchanda, J., in Hindustan Metal Works v. Sales Tax Officer [1964] 15 S.T.C. 116 also held that Rule 68 of the U.P. Sales Tax Rules, 1948, which empowered the appellate authority to dismiss an appeal for default, is ultra vires of Section 9 of the U.P. Sales Tax Act. With regard to this decision, the learned Government Pleader argues that the appellate authority under the U.P. Sales Tax Act was not empowered to pass such orders as it thinks fit with regard to the appeal before it. A reading of the judgment in that case discloses that the conclusion was arrived at by the learned Judge on a consideration of the entire scheme of the Act and in particular the power vested in the appellate authority to enhance the tax once an appeal is filed before it. The reasoning of the said decision accords with our view expressed above. In the decision reported in the Commissioner of Income-tax, Madras v. Chenniappa Mudaliar [1969] 1 S.C.W.R. 680 the question whether Rule 24 of the Appellate Tribunal Rules, in so far as it enables the Tribunal to dismiss an appeal for default of appearance, was ultra vires the provisions of Section 33 of the Income-tax Act, 1922, came up for consideration. Having held that under Section 33(4) the Appellate Tribunal was enjoined to decide the appeal on merits and cannot short-circuit the same for dismissing it for default of appearance the Supreme Court further held as follows :-

it is true that the Tribunal's powers in dealing with appeals are of the widest amplitude and have, in some cases, been held similar to, and identical with, the powers of an appellate court under the Civil Procedure Code. Assuming that for the aforesaid reasons the Appellate Tribunal is competent to set aside an order dismissing an appeal for default in exercise of its inherent power there are serious difficulties in upholding the validity of Rule 24. It clearly comes into conflict with Sub-section (4) of Section 33 and in the event of repugnancy between the substantive provisions of the Act and a rule it is the rule which must give way to the provisions of the Act.

18. These observations of their Lordships of the Supreme Court apply with equal force to the Sales Tax Appellate Tribunal which under Section 3(4) of the Andhra Pradesh Sales Tax Act is authorised to make regulations for regulating its procedure and disposal of its business and is not vested with the power to frame rules for carrying out the purpose of the Act.

19. It was, therefore, contended that vesting power to dismiss an appeal for default is a matter regulating the procedure before a Tribunal and also a matter concerning the disposal of the business and that Clause 9 of the Regulation is within the ambit of Section 3(4) of the Act.

20. The learned Government Pleader, however, lastly contends that the power to dismiss an appeal for default is not inconsistent or derogatory to any provision of the Act. What he urges is that the Act is silent as to what the Tribunal should do when the appellant fails to appear. Where the Act is silent, the Tribunal in exercise of its powers to regulate its own procedure and the disposal of its business under Sub-section (4) of Section 3 may properly frame a regulation authorising the dismissal of an appeal for default. We arc unable to agree with this contention. Where a statute provides a right of appeal to a particular Tribunal constituted under the Act, which has no inherent jurisdiction, the power to make a particular order must be found within the four corners of the Act. The decision on an appeal is not a matter of procedure. The manner in which that decision should be arrived at and the steps that have to be adopted before that decision is rendered would be a matter of procedure but not the decision itself. While the Tribunal could regulate the procedure for the disposal of the appeals it could neither enlarge nor abridge the scope of the order which a Tribunal could make with regard to the final disposal of the appeal itself. The disposal of the appeal is not a matter of procedure but one which relates to the power of the Tribunal. In exercise of the authority vested under Section 3(4) of the Act, the Tribunal could not in the guise of regulating its procedure enlarge its powers and clothe itself with the power which it did not have under the Act. Much less could the power to dismiss for default be brought within the power of the Tribunal to frame regulations for the disposal of its business. What is envisaged by the use of the expression 'disposal of its business' is to authorise the Tribunal to make regulations in regard to the place of hearing of appeals, the time of hearing the appeals, the order in which several appeals before it would be taken up and the like.

21. For all the above reasons we hold that the Appellate Tribunal under the Andhra Pradesh General Sales Tax Act, 1957, has no jurisdiction to dismiss an appeal filed under Section 21 of the Act for default of appearance of the appellant or his counsel. Clause 9(1) of the Regulation of the Andhra Pradesh General Sales Tax Appellate Tribunal Regulations, 1957, contained in Memorandum No. 34908-B/S/57-3 Revenue, dated 24th July, 1957, in so far as it empowers the appellate authority to dismiss an appeal for default is repugnant to Section 21(4) of the Act and ultra vires of the power of the Tribunal under Section 3(4) read with Section 21(4) of the Act and is, therefore, struck down. The Tribunal must, therefore, be held to have acted without jurisdiction in dismissing the appeal for default on 29th June, 1964, and to have failed to exercise a jurisdiction vested in it in not disposing of the appeal filed by the petitioner herein on merits. The order of the Tribunal dated 29th June, 1964, and its subsequent order dated 17th April, 1965, dismissing the petition are accordingly quashed and the Tribunal is directed to dispose of the appeal filed by the petitioner herein on merits in accordance with law in the light of the observations made above.

22. The writ petition, therefore, succeeds and is accordingly allowed with costs. Advocate's fee Rs. 200.


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