State of Tamil Nadu vs Amburose Mary

Dr. A.S. Anand, C.J.—The Revenue is in revision against the order made by the Sales Tax Appellate Tribunal (Additional Bench),

Coimbatore, dated 28th January, 1982, reviewing the earlier order of the Tribunal dated 7th July, 1981.

The facts necessary for the disposal of this revision petition are : The assessee-respondent had preferred an appeal against the order of the

Appellate Assistant Commissioner dated 2nd January, 1981, relating to the assessment year 1979-80 before the Tamil Nadu Sales Tax Appellate

Tribunal (Additional Bench), Coimbatore. After a detailed discussion, the Tribunal found that the assessee had not maintained production-cum-

stock account and separate account for finished goods, and that copies of the sale bill Nos. 12533 and 12534 were left blank and the original bills

were not available. Since no proper and acceptable explanation was furnished by the assessee, the Tribunal came to the conclusion that the

addition to the taxable turnover by the Appellate Assistant Commissioner was justified. The Tribunal also found on facts that the Appellate

Assistant Commissioner had sustained penalty equal to the tax on the suppressed turnover since there was a wilful non-disclosure of the turnover.

This order was made by the Tribunal on 7th July, 1981, while dismissing the appeal filed by the assessee-respondent. It appears that an application

was made before the Tribunal apparently u/s 36(6) of the Tamil Nadu General Sales Tax Act, 1959, seeking a review of the order passed on 7th

July, 1981. In the application, the assessee disputed the turnover of Rs. 57,517 as well as the penalty of Rs. 4,764. The Tribunal, by the order

impugned in the revision petition, which is a detailed one, accepted the review application in part, and set aside the imposition of penalty while

upholding the addition made to the turnover on account of suppressions.

The order of the Tribunal, in our opinion, cannot be sustained. Power of review is not an inherent power. It is a statutory power, and section

36(6)(a) of the Tamil Nadu General Sales Tax Act, 1959, provides that a party may apply for review of any order passed by the Appellate

Tribunal 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"". The further limitation provided in clause (b) of sub-section (6) is that the application for

review could be preferred only within one year from the date on which a copy of the order to which the application relates was served on the party

in the prescribed manner; and a review petition has to be accompanied by such fee as may be prescribed. It is thus seen that for filing a review

petition u/s 36(6) of the Act, new and important facts discovered must be after the exercise of due diligence, and such facts should not have been

within the knowledge of the party. That apart, the facts must be such as could not be produced by the party seeking a review, when the order

sought to be reviewed was made. The non-production of the record must be due to some inability after exercise of due diligence. In the instant

case, it is found that the Tribunal examined the ledge produced by the assessee, and was influenced by the same in coming to the conclusion that

levy of penalty was not called for. In vain we have searched through the order of the Tribunal as to why that record was not produced, as

admittedly it was a record available with the assessee and in its possession, at the earlier stages. Unless the Tribunal recorded a finding that the the

non-production of the record at the earlier stages was due to some inability after the exercise of due diligence, no recourse would be had to the

provision of section 36(6) of the Act. Even otherwise, it appears from the record of the assessing authority as well as the Appellate Assistant

Commissioner that the records had been produced by the assessee before the authorities. Since the so-called additional records sought to be

produced were also within the knowledge and in possession of the assessee, it was its obligation to produce it at the relevant time and not to keep

it back, and having failed before the Tribunal on the earlier occasion, make yet another attempt to get some relief. ""A forensic defeat cannot be

avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result."" Prima facie, we find that there was no error

apparent on the face of the record so far as the earlier order of the Tribunal concerned. An error which is alleged to have been discovered by

reference to case law and material which was admittedly not produced at the earlier stages cannot be said to be an error apparent which may

clothe the Tribunal with jurisdiction to review its earlier order. In our opinion, the Tribunal, therefore, exceeded its jurisdiction in reviewing the

order dated 7th July, 1981, and by reference to certain material and other judgments, deleting the penalty. The application for review was almost

treated as an appeal against the order of the appellate authority, and certainly, a review application cannot be an appeal in disguise. The order of

the Tribunal in review application dated 28th January, 1982, is not sustainable. We, therefore, accept this revision and set aside that order.

Consequently, the order of the Tribunal dated 7th July, 1981, is restored. There will be no order as to costs.

Petition allowed.