Skip to content


Easun Engineering Co. Ltd. Vs. Sales Tax Appellate Tribunal and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case Number Writ Petition No. 4013 of 1967
Judge
Reported in[1972]29STC378(Mad)
AppellantEasun Engineering Co. Ltd.
RespondentSales Tax Appellate Tribunal and anr.
Appellant Advocate V. Ramachandran, Adv.
Respondent Advocate K. Venkataswami, First Assistant Government Pleader
Disposition Petition dismissed
Cases ReferredKhosla & Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes
Excerpt:
- - 1. the petitioner is aggrieved against the order of the sales tax appellate tribunal dated 8th march, 1967. for the year 1961-62 which was finally disposed of by the first assessing authority on 20th september, 1963, the petitioner was canvassing the propriety and legality of the order of assessment by the assessing authority as well as the appellate authority. in tills state of affairs, i fail to see how any error at all has crept into the record and if no such error has crept into the record, there can be no apparent error either......error and that error continues to remain on record, it would be a pursuable error or an apparent error on record. in those circumstances, the person aggrieved is entitled to approach the appropriate authority including the appellate tribunal to rectify such an error which is so patent on the record. in a given case where the assessee fails to advert to a particular circumstance or detail and if such an invitation for a decision on the facts so placed was necessary but was not undertaken by the assessee, then it is not the duty of the appellate tribunal to make a roving enquiry of the record and decide for himself issues which were not thought of or argued by the assessee before it. if any such enterprising venture is undertaken by a tribunal, it would be completely one which is outside.....
Judgment:
ORDER

Ramaprasada Rao, J.

1. The petitioner is aggrieved against the order of the Sales Tax Appellate Tribunal dated 8th March, 1967. For the year 1961-62 which was finally disposed of by the first assessing authority on 20th September, 1963, the petitioner was canvassing the propriety and legality of the order of assessment by the assessing authority as well as the appellate authority. Finally, the Appellate Tribunal by order dated 30th January, 1965, disposed of the matter. The decision in Khosla & Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes [1966] 17 S.T.C. 473 was rendered on 18th January, 1966. He filed an application in 1967 stating that a turnover of Rs. 8,33,024,21 has to be excluded from the taxable turnover since according to the decision in the Khosla's case [1966] 17 S.T.C. 473 they should be deemed to be sales which occasioned the import. It is conceded that this question was never mooted or argued before the Tribunal. As a matter of fact, the petitioner did not even make it a ground for appeal as against the order of the appellate authority. The Tribunal interpreting the law as it existed and in the absence of any representation that the turnover as above is excludable as non-taxable turnover, did not advert to it at all. In fact, there was no material before it which was placed by the counsel which prompted them to look into the record in such an angle and find whether such a turnover related to sales which occasioned the import or were in the course of import. It is also common ground that the Khosla's case [1966] 17 S.T.C. 473 was not there when the Tribunal passed its original order, with the result, the Tribunal did never advert to the fact which was not placed before it or argued before it and it is also stated that the petitioner succeeded entirely before the Appellate Tribunal and it was this reason which prompted him hot to take up the matter further to this court in tax revision case. After the judgment in the Khosla's case [1966] 17 S.T.C. 473 was delivered in January, 1966, the petitioner became venturesome and filed an application for rectification of the order of the Tribunal on the ground that the Khosla's case [1966] 17 S.T.C. 473 ought to be applied and the order modified. The Tribunal refused to do so. It is as againt this, the present writ petition has been filed.

2. It is convenient at this stage to refer to the scope and the power to rectify any error apparent on the face of the record which is contemplated in Section 55(1) of the Tamil Nadu General Sales Tax Act, 1959. The statutory authorities including the Appellate Tribunal may, at any time within three years from the date of any order passed by it, are empowered to rectify any error apparent on the face of the record. It is, therefore, necessary that the records should show that the Appellate Tribunal applied its mind over a broad aspect which was argued before it and decided the case one way or the other. If in the course of such a decision, it commits an error and that error continues to remain on record, it would be a pursuable error or an apparent error on record. In those circumstances, the person aggrieved is entitled to approach the appropriate authority including the Appellate Tribunal to rectify such an error which is so patent on the record. In a given case where the assessee fails to advert to a particular circumstance or detail and if such an invitation for a decision on the facts so placed was necessary but was not undertaken by the assessee, then it is not the duty of the Appellate Tribunal to make a roving enquiry of the record and decide for himself issues which were not thought of or argued by the assessee before it. If any such enterprising venture is undertaken by a Tribunal, it would be completely one which is outside its legal responsibility as a Tribunal. No Judge or Tribunal is called upon at any material point of time to decide something which he is not called upon by the counsel appearing on either side to decide. There is no obligation cast on him, as far as I know, to investigate for himself the law or the facts on the subject unless he is prompted to do so on issues of constitutional importance to decipher the merits, shift the material for himself and ultimately adjudicate upon such material which was not even adverted to by the parties before him but which he on his own endeavour and volition discovered for himself. In this view of the matter, the Tribunal when it passed the order on 30th January, 1965, had no occasion to consider the facts in the instant case and ultimately decide on such facts whether the transactions relating to such facts were to be treated as sales in the course of import. As a matter of fact, it is admitted that no such argument was ever made before the Tribunal. The decision in the Khosla's case [1966] 17 S.T.C. 473 was also not there. It, therefore, follows that there was no duty cast on the Tribunal to decide whether any part of the turnover related to sales in the course of import nor was it called upon to do so by any argument of counsel before it at that time. In tills state of affairs, I fail to see how any error at all has crept into the record and if no such error has crept into the record, there can be no apparent error either. In this view of the matter, the Tribunal was right, in having dismissed the application to rectify an error which did not exist in its order. There was no public duty on the part of the Tribunal to correct an error which was not there in the order. In fact, that is the only thing they are expected to do under Section 55. The application for rectification has been rightly rejected. On the only ground that the petitioner secured certain rights as a result of the decision in the Khosla's case [1966] 17 S.T.C. 473, he cannot compel a Tribunal to do a duty which is not enjoined on it by law.

3. This writ petition is, therefore, dismissed. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //