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C.B.B. Thandava Rao Vs. State of Madras - Court Judgment

LegalCrystal Citation
SubjectCivil;Sales Tax
CourtChennai High Court
Decided On
Case NumberTax Case No. 276 of 1962 (Revision No. 115 of 1962)
Judge
Reported in[1964]15STC22(Mad)
AppellantC.B.B. Thandava Rao
RespondentState of Madras
Advocates:K.N. Balasubramanian, Adv.
DispositionPetition dismissed
Cases ReferredNatarajan Chettiar and Ors. v. State of Madras I.L.R.
Excerpt:
.....that even a misapprehension of counsel appearing for a party in a case would be a good ground for review. after having read the decision quite carefully we are clearly of opinion that the decision is not an authority for holding that an error, mistake or misapprehension of a counsel in the case would constitute an error apparent on the face of the record. varadappa chettyar (1939)2mlj809 ,that a misconception by the court of a concession made by the advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review......tribunal) may, at any time within three years from the date of any order passed by it, rectify any error apparent on the face of the record....7. we agree with the learned counsel for the petitioner that if the substance of the application was to rectify any error apparent on the face of the record the tribunal should have exercised its power under this provision without in any way penalizing the petitioner for quoting a wrong provision of law, or for not stating the correct provision. but, we must observe that the tribunal has really considered the question whether there was any error apparent on the face of the record to justify a rectification, as it is called, under section 55 of the act. in its view there was no such error. the question is whether that view is correct.8. the power.....
Judgment:

Jagadisan, J.

1. The petitioner is a dealer in textiles at Madurai. He was assessed to sales tax under the Madras General Sales Tax Act, 1939, for the assessment year 1956-57. The Deputy Commercial Tax Officer, Madurai, assessed him to tax at the rate of Re. 0-1-6 on a turnover of Rs. 3,41,057-11-0 and at the rate of 3 pies on another turnover of Rs. 43,004-2-6. He preferred an appeal before the Commercial Tax Officer, Madurai, and, of the several contentions raised, one was that, between the period 23rd February, 1957, and 31st March, 1957, he had not collected any additional tax from his purchasers and that he would be entitled to relief from such additional tax under the Government Memorandum No. 98975-M/57 dated 7th January, 1958. The Appellate Authority was not convinced that the petitioner did not collect the tax from his constituents. He took the view that the petitioner had collected the additional tax in a disguised manner including it as part of the price of the cloth sold. The Commercial Tax Officer, therefore, refused to grant relief to the petitioner in terms of the Government Order. The petitioner preferred a further appeal to the Sales Tax Appellate Tribunal, Madras.

2. Most of the questions which he raised before the Tribunal had been raised by another assessee in a tax revision case in this Court. The petitioner applied for stay of the hearing of his appeal, pending decision of Tax Revision Cases Nos. 50 and 51 of 1958 which were the revisions preferred by the other assessee. The Tribunal granted the stay asked for by order dated 31st October, 1958. T.R.C. Nos. 50 and 51 of 1958 were disposed of by this Court, and the contentions raised by the petitioner in the pending appeal before the Tribunal could not be sustained in view of the decision of this Court which has since been reported in Nannuswami v. State of Madras [1960] 11 S.T.C. 726. When the appeal before the Tribunal came on for final orders on 20th December, 1960, after the disposal of Nannuswami v. State of Madras [1960] 11 S.T.C. 726, learned counsel who appeared for the petitioner before the Tribunal withdrew the appeal and the appeal was accordingly dismissed. The order of the Tribunal was as follows :

The appellant's learned counsel Sri T. S. Sankaranarayana Iyer has made an endorsement on the appeal memorandum that the appeal is withdrawn. The appeal is accordingly dismissed. Three-fourths of the institution fee will be refunded.

3. The petitioner filed an application, T. R. A. No. 2 of 1961, purporting to be Under Section 36(6)(a) of the Madras General Sales Tax Act, 1959, and sought relief to have the previous order of dismissal of the appeal reviewed. The contention urged in support of the review application was that the counsel made the endorsement on the appeal memorandum under a bonafide mistake thinking that all the grounds that could be urged in the appeal were really covered by the decision of the High Court in Nannuswami v. State of Madras [1960] 11 S.T.C 726, and that he overlooked the point raised, for relief in terms of the Government Memorandum. This was alleged to be an error of law apparent on the face of the record which would justify the order of dismissal being set aside and the appeal heard afresh. The Tribunal dismissed this review application holding that there were no grounds for review either Under Section 36(6)(a) of the Act, or under the so-called inherent power of the Tribunal. It is this order which is now challenged before us in this revision petition.

4. It is obvious that Section 36(6)(a) relied upon by the petitioner before the Tribunal is inapplicable, and indeed, learned counsel for the petitioner appearing before us conceded this position. Section 36(6)(a) reads,

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...

5. It is not alleged that the petitioner discovered new and important facts, which were not within his knowledge at the time when the appeal was disposed of, after the disposal and that therefore a valid ground is available under this provision. What is pleaded is only a bonafide mistake on the part of the learned counsel for the petitioner who appeared before the Tribunal which he is alleged to have committed by making the endorsement on the appeal memorandum withdrawing the appeal.

6. It is however submitted that the application for review before the Tribunal could be sustained Under Section 55 of the Act and that the mere fact that a wrong provision of law was quoted should not disentitle the petitioner to get the necessary relief. Section 55 (1) is as follows:-

An assessing authority or an appellate or revising1 authority (including the Appellate Tribunal) may, at any time within three years from the date of any order passed by it, rectify any error apparent on the face of the record....

7. We agree with the learned counsel for the petitioner that if the substance of the application was to rectify any error apparent on the face of the record the Tribunal should have exercised its power under this provision without in any way penalizing the petitioner for quoting a wrong provision of law, or for not stating the correct provision. But, we must observe that the Tribunal has really considered the question whether there was any error apparent on the face of the record to justify a rectification, as it is called, Under Section 55 of the Act. In its view there was no such error. The question is whether that view is correct.

8. The power to correct or rectify errors apparent on the face of the record is conferred generally on all Tribunals by the statute creating them. The corresponding provision in the Civil Procedure Code is Order 47, Rule 1, and, in the Indian Income-tax Act, Section 35. Confining ourselves to the words of Section 55 of the Madras General Sales Tax Act, 1959, we have no doubt that the rectifiable error must be manifest and self-evident on the face of the record. It can be assumed that the 'record' comprises the entire assessment proceedings, including the evidence adduced. This cannot be controverted. The error may be one of fact or law. But, it must be one which is apparent and not lurking, which is visible and not dormant, which can be seen and is not hidden. The following observation of the Supreme Court in Hari Vishnu Kamath v. Syed Ahmad Ishaque and Ors. : [1955]1SCR1104 may be usefully quoted to comprehend the true scope and meaning of the expression 'error apparent on the face of the record':

When does an error cease to be mere error, and become an error apparent on the face of the record Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J., in Batuk K. Vyas v. Surat Municipality : AIR1953Bom133 that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be denned precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.

9. The evident nature of an error might be a matter which could be made clear by arguments, but it cannot be made to depend upon extraneous factors or circumstances. In other words, an error might be established by referring to the records and by elucidating the materials disclosed by the records. But an error which in the language of the section must be one apparent from the record cannot be demonstrated to exist by relying upon materials outside the record. We do not think that the clear words of Section 55 of the Act would permit the Tribunal to embark upon an enquiry to ascertain an error by investigation of matters which are brought before the Tribunal for the first time, at the time when its jurisdiction is sought by way of review or rectification. If we were to accede to this interpretation urged on behalf of learned counsel for the petitioner that an error is none the less an error apparent on the face of the record because of the necessity to have the error established by referring to evidence aliunde we are afraid that we would be violating the clear restrictions imposed by the plain words of the section, and convert a remedy which would be much wider in its scope, than even a power of appeal.

10. Our attention has been drawn to the decision of Patanjali Sastri, J.; as he then was, in Govinda Chettyar v. Varadapfta Cheliyar : (1939)2MLJ809 . Relying upon this decision learned counsel for the petitioner contended that even a misapprehension of counsel appearing for a party in a case would be a good ground for review. After having read the decision quite carefully we are clearly of opinion that the decision is not an authority for holding that an error, mistake or misapprehension of a counsel in the case would constitute an error apparent on the face of the record. In fact, that decision turned upon the proper interpretation of the words 'any other sufficient reason' occurring in Order 47, Rule 1, Civil Procedure Code. Patanjali Sastri, J., has quite categorically stated at page 811 that the misapprehension of counsel is not a mistake or error apparent on the face of the record. The learned Judge observed :

There was of course no mistake or error apparent on the face of the record in this case. If there were, that would obviously be a sufficient ground by itself for a review. But the misapprehension owing to which the learned counsel for the respondents says he did not urge all his arguments in support of the finding recorded in favour of his clients by the first Court, and the consequent erroneous impression on the part of the learned Subordinate Judge-for which, of course, he was not at all to blame but the counsel was alone responsible-that the latter had no arguments to urge to meet the points raised by the appellants' counsel, seem to my mind, to be analogous enough to an error apparent on the face of the record to be a sufficient reason for review under Order 47, Rule 1, Civil Procedure Code.

11. The Supreme Court has referred to this observation of the learned Judge in Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. A.I.R 1954 S.C. 526 their Lordships of the Supreme Court observed,

Patanjali Sastri, J. (as he then was) sitting singly in the Madras High Court definitely took the view in Rakhanti Chinna Govinda Chettyar v. Varadappa Chettyar : (1939)2MLJ809 , that a misconception by the Court of a concession made by the Advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review.

13. Be it noted that in Section 55 of the Madras General Sales Tax Act, 1959, the words!'or for any sufficient reason' do not follow the words 'apparent on the face of the record'. It is not permissible for the Court to add words to the section and we must, therefore, hold that the one and only ground on which rectification can be made would be an error of the kind mentioned in the section.

14. It was next contended that there was something in the nature of an inherent power in the Tribunal to grant relief to the petitioner. Reference is made to the decision of this Court in S.V.R. Natarajan Chettiar and Ors v. State of Madras I.L.R. 1960 Mad. 449. The following observation from that case is relied upon :

As we have already stressed, there can be no doubt that an inherent power to review should be presumed in all such cases, as it cannot be just and expedient that such Tribunals rendering judicial decisions should be unable to rectify an error apparent on the face of the record, or to exercise powers of review for similar adequate causes.

15. It is settled rule of law that tribunals created by special statutes do not have larger powers than what the statute chooses to confer upon them. It is very difficult to conceive of any inherent jurisdiction in a Tribunal analogous to that of an inherent power of a Civil Court. Whatever that may be, where the special enactment confers a power of review to the Tribunal of its creation in restricted terms, it is implicit that the power cannot be enlarged or extended beyond the statutory restrictions, in the guise of an inherent power. The case in Natarajan Chettiar and Ors. v. State of Madras I.L.R. 1960 Mad. 449 was a case in which there was no specific or special power by way of review under the particular statute. In these circumstances, we are of opinion that the petitioner cannot obtain any relief once it is found that neither Section 36(6)(a) nor Section 55 would be applicable.

16. In the result, the petition fails and is dismissed.


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