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Deputycommissioner of Commercial Taxes, Madras Division Vs. Khanna Auto Corporation - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberT. Civil Miscellaneous Petition No. 186 of 1968 in T.C. No. 127 of 1964
Judge
Reported in[1969]24STC153(Mad)
AppellantDeputycommissioner of Commercial Taxes, Madras Division
RespondentKhanna Auto Corporation
Advocates:S. Mohan, Assistant Government Pleader
DispositionPetition dismissed
Cases ReferredRathinaswamy Chettiar v. State of Madras
Excerpt:
- - the dealer's accounts of sales in respect of spare parts bought inside the state from other dealers and spare parts bought from outside the state were not found to be reliable......j.1. this petition is filed by the deputy commissioner, commercial taxes, madras, for a review of our judgment in t.c. no. 127 of 1964 delivered on 13th april, 1967. this application for review is under section 38(8) of the madras general sales tax act, 1959, and was filed on 11th april, 1968. the question that arose before us for decision was whether the sales of motor spare parts by a particular dealer should be assessed or exempt from assessment as second sales. the dealer's accounts of sales in respect of spare parts bought inside the state from other dealers and spare parts bought from outside the state were not found to be reliable. the department assessed the sales as first sales adopting a ratio from purchases inside the state to total purchases. the basis of the.....
Judgment:
ORDER

Ramakrishnan, J.

1. This petition is filed by the Deputy Commissioner, Commercial Taxes, Madras, for a review of our judgment in T.C. No. 127 of 1964 delivered on 13th April, 1967. This application for review is under Section 38(8) of the Madras General Sales Tax Act, 1959, and was filed on 11th April, 1968. The question that arose before us for decision was whether the sales of motor spare parts by a particular dealer should be assessed or exempt from assessment as second sales. The dealer's accounts of sales in respect of spare parts bought inside the State from other dealers and spare parts bought from outside the State were not found to be reliable. The department assessed the sales as first sales adopting a ratio from purchases inside the State to total purchases. The basis of the decision was that while the dealer's accounts regarding purchases were acceptable, the accounts regarding sale of locally purchased products and products purchased from outside the State were not acceptable. However, the Sales Tax Appellate Tribunal, following an earlier decision of a Bench of this Court in Rathinaswamy Chettiar v. State of Madras [1962] 13 S.T.C. 419, held that the normal course which a dealer would adopt in such circumstances is to give preference for sales, to locally purchased goods before selling goods purchased from outside the State, because locally purchased goods being second sales would not be liable to sales tax and exempted the turnover in question from assessment. In the revision case also, we agreed with the Tribunal and dismissed the revision case filed by the Government.

2. Subsequently, on 4th May, 1967, the Supreme Court in State of Madras v. Narayana Nadar & Co. [1968] 21 S.T.C. 25 expressed the view that the decision in Rathinaswamy Chettiar v. State of Madras [1968] 21 S.T.C. 25 required reconsideration in view of the statutory provision in the Madras General Sales Tax Act, 1959. The relevant statutory provision thus referred to is that the burden of proving that any of the transactions of a dealer is not liable to tax under the Act shall lie on such dealer. In the Supreme Court's view, the onus was on the dealer to prove that the particular sales were second sales and exempt from sales tax, and in the absence of his ability to discharge the burden of proof, the sales should be assessed as first sales.

3. The learned Government Pleader appearing for the petitioner wants a review of our decision, because the Supreme Court, since our decision was given, had expressed the view that the decision in Rathinaswamy Chettiar v. State of Madras [1962] 13 S.T.C. 419, requires reconsideration. But it appears to us that the fact that the Supreme Court in a subsequent decision expressed the above view about Rathinaswamy Chettiar v. State of Madras [1962] 13 S.T.C. 419, should not be a ground for review under Section 38(8) of the Madras General Sales Tax Act, 1959, of our decision which was given earlier. That section says that the petitioner or the respondent may apply for review of any order passed by the High Court 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. It is clear that the expression of opinion by the Supreme Court subsequent to our judgment cannot be considered as discovery of new and important facts which were not within the knowledge of the petitioner at the time when the order was made. There is an established line of decisions under Order XLVII, Civil Procedure Code, which deals with an analogous provision for review, holding the view that the production of a new ruling or authority which if brought to the notice of the Judge at the first hearing might have altered the judgment, is not a new and important matter within the meaning of the provision in Order XLVII, Rule 1, Civil Procedure Code. (Vide Mulla's Code of Civil Procedure, Volume 2, page 1670, 13th Edition).

4. There is one other point to be considered in this connection. Our judgment was given on 13th April, 1967, and the Supreme Court's judgment was given on 4th May, 1967. It was open to the petitioner to appeal against our judgment, basing the appeal on the view expressed by the Supreme Court. But no such steps were taken and nearly one year later, the petitioner has come with this review petition before us. We are of opinion that the review petition is not maintainable in the above circumstances, and it is dismissed in linine.


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