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Gollapudi Suryanarayana Chetty Vs. State of Tamil Nadu - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberT.C. No. 73 of 1976 (Revision No. 23 of 1976)
Judge
Reported in[1980]45STC227(Mad)
AppellantGollapudi Suryanarayana Chetty
RespondentState of Tamil Nadu
Appellant AdvocateK.J. Chandran, Adv.
Respondent AdvocateGovernment Pleader
DispositionPetition dismissed
Cases ReferredRathinaswamy Chettiar v. State of Madras
Excerpt:
- .....knowledge or could not be produced by him when the order was made.3. this provision contemplates a review application being filed only where new and important facts were discovered by the applicant and such facts should not have been available to the applicant or should not have been within his knowledge prior to the disposal of the appeal. these requisites are not satisfied in the present case which relates to an interpretation of the expression 'iron and steel' occurring in the second schedule of the sales tax act. it cannot, therefore, be stated that this is a case which falls within the scope of sub-section (6) of section 36. this court has considered a similar point in the context of section 38(8) in deputy commissioner of commercial taxes, madras division, madras-6 v. khanna auto.....
Judgment:

Sethuraman, J.

1. The revision petition has been filed against the order of the Sales Tax Appellate Tribunal refusing to review its earlier order. The Tribunal disposed of the appeal of the assessee by its order dated 6th December, 1972. In that order it was held that galvanised plain sheets were not declared goods and, therefore, the assessee was not eligible for the relief claimed. Subsequently, there was a decision of the Andhra Pradesh High Court reported in State of A.P. v. Sri Durga Hardware Stores dated 15th June, 1972, and it was published in Part No. 6 of Volume No. 32 of 'The Sales Tax Cases'. There was a circular after receipt of this judgment by the South Indian Iron and Hardware Merchants' Association dated 11th October, 1973, bringing out the substance of the said decision of the Andhra Pradesh High Court. After receipt of this circular, the assessee filed a petition for review before the Tribunal. The Tribunal rejected the said application and the matter is now before us.

2. Section 36(6)(a) of the Act runs as follows:

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.

3. This provision contemplates a review application being filed only where new and important facts were discovered by the applicant and such facts should not have been available to the applicant or should not have been within his knowledge prior to the disposal of the appeal. These requisites are not satisfied in the present case which relates to an interpretation of the expression 'iron and steel' occurring in the Second Schedule of the Sales Tax Act. It cannot, therefore, be stated that this is a case which falls within the scope of Sub-section (6) of Section 36. This Court has considered a similar point in the context of Section 38(8) in Deputy Commissioner of Commercial Taxes, Madras Division, Madras-6 v. Khanna Auto Corporation, Madras-2 [1969] 24 S.T.C. 153. Following an earlier decision in Rathinaswamy Chettiar v. State of Madras [1962] 13 S.T.C. 419, this Court held that a dealer would normally first sell only locally purchased goods before the goods purchased from outside the State were sold. In this view, the assessee's claim for exemption of certain sales as second sales was allowed by the High Court. Subsequently, the Supreme Court in State of Madras v. Narayana Nadar and Co. [1968] 21 S.T.C. 25. expressed the view that the decision in Rathinaswamy Chettiar v. State of Madras [1962] 13 S.T.C. 419. required reconsideration. The assessee thereupon pleaded for review of the earlier judgment under Section 38(8) of the Act. This Court negatived the application. Section 38(8) also provides 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 have been produced by him when the order was made. This case clearly shows that the subsequent decision cannot be brought within the scope of the power of review. Following the said judgment, we hold that the application for review was rightly rejected by the Tribunal.

4. The Learned counsel for the assessee then pointed out that he has pleaded before the Tribunal that in case the Tribunal felt any difficulty in reviewing the order, it could at least treat the application as one under Section 55 for rectification of the error in its order. The Tribunal has not dealt with it as an application under Section 55. If it has to be construed as an order under Section 55 also, then there could be no revision against the said order. Section 55(4) provides that the provisions of this Act relating to appeal and revision shall apply to an order of rectification made under this section as they apply to the order in respect of which such order of rectification has been made. The rectification contemplated by this provision would be an order rectifying the earlier order and not an order refusing to rectify an earlier order. The revision would fail on this ground also.

5. The revision accordingly fails and is rejected with costs. Counsel's fee Rs. 250.


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