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Deputy Commissioner (Ct) Vs. K.S.T. Raju Chettiar - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberTax Case No. 188 of 1972 (Revision No. 167 of 1972)
Judge
Reported in[1977]39STC457(Mad)
AppellantDeputy Commissioner (Ct)
RespondentK.S.T. Raju Chettiar
Appellant AdvocateThe Additional Government Pleader No. I
Respondent AdvocateK. Ramgopal, Adv. for ;Raj and Raj
DispositionPetition dismissed
Excerpt:
.....by the tribunal dismissing an application for review is an order under section 36(3). apart from this, the express provision contained in section 36(8) and (9) will clearly show that the scheme of the act itself contemplates two separate orders, one under section 36(3) and another under section 36(6). we are referring to the scheme of the act because even before the amendment of section 38(1) by tamil nadu amending act no. 31 of 1972, but also, even before this amendment, in sub-section (8) of section 36. in view of this, we are clearly of the opinion that the statute contemplates the tribunal passing different orders, one under sub-section (3) of section 36 when it originally disposes of the appeal and the other under sub-section (6) of section 36 when it disposes of the application..........it is unnecessary to refer to the facts in detail. two appeals preferred by the assessee to the tamil nadu sales tax appellate tribunal (additional bench), coimbatore, were dismissed by the tribunal by its order dated 15th december, 1967, namely, m.t.a. nos. 86 of 1967 and 1694 of 1966. thereafter the assessee preferred two applications-c.t.a. no. 12 of 1970 and c.t.a. no. 13 of 1970. under section 36(6) of the tamil nadu general sales tax act, 1959, hereinafter referred to as the act, for reviewing the orders of the tribunal made in these appeals. the tribunal by its common order dated 29th april, 1971, reviewed its earlier orders, dismissed one application for review and allowed the other application in part. it is against the order of the tribunal allowing c.t.a. no. 12 of 1970 in.....
Judgment:

Ismail, J.

1. In view of the narrow compass within which the matter lies, it is unnecessary to refer to the facts in detail. Two appeals preferred by the assessee to the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Coimbatore, were dismissed by the Tribunal by its order dated 15th December, 1967, namely, M.T.A. Nos. 86 of 1967 and 1694 of 1966. Thereafter the assessee preferred two applications-C.T.A. No. 12 of 1970 and C.T.A. No. 13 of 1970. Under Section 36(6) of the Tamil Nadu General Sales Tax Act, 1959, hereinafter referred to as the Act, for reviewing the orders of the Tribunal made in these appeals. The Tribunal by its common order dated 29th April, 1971, reviewed its earlier orders, dismissed one application for review and allowed the other application in part. It is against the order of the Tribunal allowing C.T.A. No. 12 of 1970 in part, the present revision has been filed purporting to be under Section 38(1) of the Act.

2. As soon as the learned Additional Government Pleader opened the case for the taxing authority, the learned counsel for the assessee took a preliminary objection contending that the revision case itself was not maintainable. Since we agree with his contention, it is not necessary to go into the merits of the order passed by the Tribunal and it is enough if we give our reasons to show that this revision case is not maintainable. Section 38(1) of the Act, as it stood before its amendment by the Tamil Nadu Act No. 31 of 1972, is as follows :

Revision by High Court.--(1) Within ninety days from the date on which a copy of the order under Sub-section (3) of Section 36 is served in the manner prescribed, any person who objects to such order or the Deputy Commissioner may prefer a petition to the High Court on the ground that the Appellate Tribunal has either decided erroneously or failed to decide any question of law :

Provided that the High Court may admit a petition preferred after the period of ninety days aforesaid if it is satisfied that the petitioner had sufficient cause for not preferring the petition within the said period.

3. By Tamil Nadu Act No. 31 of 1972, this Sub-section (1) of Section 38 was amended by substituting the expression 'Sub-section (3) or Sub-section (6) of Section 36' in the place of 'Sub-section (3) of Section 36'. The result is that prior to the amendment, a revision application was competent only against an order of the Tribunal under Section 36(3) of the Act and after the amendment a revision is competent both against the order under Section 36(3) and against an order under Section 36(6) of the Tribunal. The very fact that by virtue of the amendment, the order of the Tribunal under Section 36(6) was made the subject-matter of revision to the High Court will prima facie show that before the amendment such an order was not subject to the revision to the High Court. Admittedly, the order which was passed by the Tribunal which has been taken to this court in the present revision case is an order passed by the Tribunal prior to the amendment.

4. However, the learned Additional Government Pleader contended that even without any reference to Section 36(6) in Section 38, an order of the Tribunal reviewing its earlier order is subject to revision under Section 38(1), as it stood even before its amendment by Tamil Nadu Act No. 31 of 1972. The reason for this contention is that Section 36(6) of the Act which provides for the application for review of the Tribunal's order does not itself contemplate the Tribunal passing an order under that Sub-section and even when an application for review is filed, the Tribunal has to dispose of that application only under Sub-section (3) of Section 36. We are unable to agree with this contention. Section 36(1) of the Act deals with the filing of appeal before the Tribunal. Section 36(2) refers to the form in which the appeal should be filed and the fee that should be paid at the time of filing of the appeal. Sub-section (3) of Section 36 states as follows :

In disposing of an appeal, the Appellate Tribunal may, after giving the appellant a reasonable opportunity of being heard,-

(a) in the case of an order of assessment-

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

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

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

(b) in the case of any other order, confirm, cancel or vary such order.

5. It is unnecessary to refer to the proviso for the purpose of this case. Sub-section (6) of Section 36 has got two components, one in Clause (a) and the other in Clause (b). Section 36(6)(a) states :

The appellant or the respondent may apply for review of any order passed by the Appellate Tribunal under Sub-section (3) on the basis of the discovery of new and important facts which after the exercise of due diligence were not within his knowledge or could not be produced by him when the order was made :

Provided that no such application shall be preferred more than once in respect of the same order.

6. Section 36(6)(b) states :

The application for review shall be preferred in the prescribed manner and within one year from the date on which a copy of the order to which the application relates was served on the applicant in the manner prescribed and where the application is preferred by any party other than a departmental authority, it shall be accompanied by such fee not exceeding one hundred rupees as may be prescribed.

7. In this context it is necessary to refer to Sub-sections (8) and (9) of Section 36 and they are as follows :

(8) Every order passed by the Appellate Tribunal under Sub-section (3) or (6) shall be communicated in the manner prescribed to the appellant, the respondent, the authority from whose order the appeal was preferred, the Deputy Commissioner, if he is not such authority and the Board of Revenue.

(9) Every order passed by the Appellate Tribunal under Sub-section (3) shall, subject to the provisions of Sub-section (6) and Section 38, be final.

8. No doubt it is true that Section 36(6) does not in express terms refer to the Tribunal passing an order but that does not certainly mean that the order which the Tribunal passes on an application for review filed under Section 36(6) will be an order under Section 36(3). For instance, if the Tribunal dismisses an application for review and, therefore, refuses to reopen its earlier order passed under Section 36(3), by no stretch of imagination it can be contended that the order passed by the Tribunal dismissing an application for review is an order under Section 36(3). Apart from this, the express provision contained in Section 36(8) and (9) will clearly show that the scheme of the Act itself contemplates two separate orders, one under Section 36(3) and another under Section 36(6). We are referring to the scheme of the Act because even before the amendment of Section 38(1) by Tamil Nadu Amending Act No. 31 of 1972, Sub-section (8) of Section 36 itself contemplated separate orders by the Tribunal, one under Section 36(3) and the other under Section 36(6). Therefore, we are unable to accept the argument of the learned Additional Government Pleader that the statute does not contemplate the Tribunal passing a separate order under Section 36(6) and even the order passed by the Tribunal on a review application will be an order only under Section 36(3). To accept the contention of the learned Additional Government Pleader will be to ignore the express language contained not only in the amending Act, namely, Tamil Nadu Act No. 31 of 1972, but also, even before this amendment, in Sub-section (8) of Section 36. In view of this, we are clearly of the opinion that the statute contemplates the Tribunal passing different orders, one under Sub-section (3) of Section 36 when it originally disposes of the appeal and the other under Sub-section (6) of Section 36 when it disposes of the application for review one way or the other and Section 38(1), as it stood prior to the amendment by Tamil Nadu Act No. 31 of 1972, provided for a revision to this court only against an order of the Tribunal passed under Section 36(3) and did not provide for a revision to this court against the order passed by the Tribunal under Section 36(6). In view of the fact that the present order passed by the Tribunal under Section 36(6) is admittedly prior to the Tamil Nadu Amending Act No. 31 of 1972, no revision was competent to this court under the law as it stood.

9. Accordingly, the revision petition is dismissed as incompetent. No order as to costs.


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