9911796707
TMI Blog1967 (8) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... der on 29th December, 1964, directing a fresh disposal of the matter by the Commercial Tax Officer in accordance with law. Although the ground on which the order of remand thus made by the Tribunal rested is not very clear, we are able to gather that the Tribunal was of the opinion that the commencement of the proceeding for the recovery of penalty should have been preceded by a hearing afforded to the petitioner. On behalf of the State, a review was sought of this order made by the Tribunal, and, that review ended in an order made by the Tribunal on 29th December, 1964, by which, the earlier order made by it was reversed and the petitioner's appeal was dismissed. This is the effect of the order made by the Tribunal, although the Tribunal d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der. The new material on which a review could be founded should consist of new facts and those facts, it is obvious, should be facts pertaining to the merits of the controversy which the Tribunal had before it. We do not accede to the argument that the fact that the person appearing for the State omitted to cite a decision of this Court when the matter was argued before the Tribunal on the first occasion, is a "fact" within the meaning of sub-section (6)(a). That fact which may be a fact in one sense is not a fact in the sense in which the word "fact" occurring in the sub-section should be understood. The facts to which that sub-section refers are facts germane to the decision of the appeal as distinguished from the law which may be applied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the decision brought before the Tribunal at that stage was a new fact which was not before it when it rendered its earlier decision. It was not asserted on behalf of the State that a new fact appertaining to the question whether the petitioner was or was not a defaulter was not before the Tribunal on the earlier occasion but became available to it from the evidence. The ground on which the review petition was founded was an existing precedent of this Court which was by inadvertence not cited. In fact the ground stated was that the law had not been properly explained to the Tribunal. The decision of this Court to which there was an appeal in support of the review application was an elucidation of what the law was. Such elucidation does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority to which the attention of the Judge was not called at the first trial, is sufficient ground for demanding a second trial. The parties ought to come prepared with all their materials, both of law and facts, at the first hearing, and if they do not come properly prepared, they ought not to be allowed, upon discovering that they had omitted to bring forward some decided case, to try the case over again upon the strength of their own omission. If the Judge had decided improperly upon a point of law, that would be a matter for appeal, not for review." It will be observed that the view expressed by the High Court of Calcutta rested upon the construction of section 376 of the old Code of Civil Procedure under which, as under the new Code, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisable under rule 38. While under the Act a review is possible on the basis of a new fact, under that rule what can be rectified is an error apparent on the face of the record. The ground for the exercise of a review is therefore not the same as that on which a rectification is authorised. The Tribunal was very clear in its mind that it could make a review on the ground specified in section 22(6)(a), and, it has already been demonstrated how unfounded its belief was. It did not focus thought on the question whether there was an error apparent on the face of the record which could be rectified under rule 38, and so, it would be impossible for Mr. Vasudeva Reddy to ask us to say that all that was done by the Tribunal was to misdescribe the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scope of the first order made by the Tribunal which now stands restored. This elucidation has become necessary by reason of a somewhat obscure language employed by the Tribunal in its preparation. The contention advanced by the petitioner before the Deputy Commissioner was that he was not a defaulter and there were some portions in the Tribunal's first order which may be understood as an admission of default by the petitioner. Mr. Katageri has pointed out to us that one of the contentions advanced before the Tribunal by the petitioner was that the petitioner was not in default since he was granted time by Government to pay the arrears of tax and the grant of such time took the case outside the provisions of section 13 and he submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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