9911796707
TMI Blog1969 (9) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on 17th April, 1969. It is not necessary to deal with the several other contentions in this writ petition in the view we are taking on the main contention raised by the learned counsel for the petitioner. Any dealer objecting to an order passed or proceeding recorded by any prescribed authority under section 19 of the Act or by a Deputy Commissioner suo motu under sub-section (4-C) of section 14 or under subsection (2) of section 20, may prefer an appeal to the Tribunal under section 21 of the Act. The appeal has to be filed within sixty days from the date on which the order or proceeding is served on the dealer. The Appellate Tribunal is, however, given power to condone the delay in preferring the appeal on sufficient cause being shown. The memorandum of appeal is required to be in the prescribed form and accompanied-by a fee not exceeding Rs. 100. The petitioner preferred an appeal in compliance with the provisions of sub-sections (1), (3) and (6) of section 21 of the Act. Sub-sections (4) and (5) of section 21 lay down as to how the Tribunal should dispose of the appeal and also as to what the powers of the Appellate Tribunal are. Sub-sections (4) and (5) of section 21 read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions in Government Memorandum No. 34908-B/S/57-3, Revenue, dated 24th July, 1957. Under clause 9 of the Regulations the power to dismiss an appeal for default and for readmission of appeal so dismissed is specially vested with the Tribunal in the following words: 9.. "(1) After the appeal has been registered, notice of the day fixed for hearing under regulation 8 in Form 'C' shall be delivered or issued by registered post to the party. The notice shall state that if he does not appear on the day so fixed or on any other day to which the hearing may be adjourned, the appeal will be dismissed for default or disposed of on merits, ex parte. (2) Where an appeal, application, or petition has been dismissed for default or disposed of ex parte: the appellant, applicant or petitioner may apply to the Tribunal for readmission of the appeal, application or petition; and where it is shown to the satisfaction of the Tribunal that he was prevented by sufficient cause from appearing when the appeal, application, or petition was called on for hearing, the Tribunal may readmit the appeal, application or petition on such terms as it thinks fit; (3) An application for readmission of an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise the assessments. The Tribunal may on being seized with a matter when an appeal is filed, is empowered even to enhance the assessment and not merely to confirm or annul the same. It is against this background that we have to judge the powers of the Appellate Tribunal enumerated under section 21(4) of the Act. Under sub-section (4) of section 21, the Appellate Tribunal may not only confirm, reduce, enhance or annul the assessment or the penalty or both but may also set aside the assessment or the penalty or both and direct the assessing authority to pass a fresh order after further enquiry. In addition to these powers under-sub-clause (iii) of section 21(4)(a) the Tribunal is given power to pass such further orders as it may deem fit. A reading of sub-clauses (i) and (ii) of section 21(4)(a) discloses that the power vested in the Tribunal relates to the merits of the assessment order and on an examination of the merits of the order under appeal, it may confirm, reduce, enhance or annul the assessment or the penalty or direct a fresh assessment after further enquiry. Sub-clause (iii) occurring thereafter must, in the context, be read ejusdem generis with the other two clauses. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant and his counsel then it would be rendering nugatory the power and duty, i.e., the power to enhance vested in the Appellate Tribunal under sub-clause (ii) of section 21(4)(a) of the Act. Viewed in the larger context of the duty of the Appellate Tribunal to safeguard the revenue realisable under the Act and the specific power vested in it to enhance the assessment, subclause (iii) cannot be read so as to clothe the Tribunal with the power to dismiss the appeal for default. A similar view has been taken by the Allahabad High Court in Hindustan Metal Works v. Sales Tax Officer[1964] 15 S.T.C. 116. in the following words "The intention of the Legislature in enacting section 9 of the U.P. Sales Tax Act, 1948, is to make the appellate court under the Sales Tax Act a watch-dog in the general public interest and particularly on behalf of the public revenues in so far as taxes are gathered through the instrumentality of the Sales Tax Act. The intention that the appeal once filed by the assessee should be disposed of only on its merits is clear from the language used in section 9 which rules out the possibility of the dismissal of an appeal for default." The scope of sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in respect of the orders of the Tribunal, must be read harmoniously. So read, at least in such cases, where questions of law arise in an appeal before the Tribunal, the Tribunal must be deemed to have no power to dismiss the appeal for default of appearance of the appellant for, any failure to decide the questions of law arising in the appeal, even for nonappearance of the appellant, would render the order of the Tribunal liable to be set aside on revision. In view of the wording of section 21(4) of the Act, we are of the opinion that the power to dismiss for default cannot be said to be vested in the Appellate Tribunal even in respect of appeals in which questions of fact arise. As already pointed out, the Tribunal once seized with the jurisdiction on the admission of an appeal may even enhance the assessment or penalty which could be done only on an examination of the merits of each case. The expression similar to the one contained in sub-clause (iii) of section 21(4)(a), namely, "pass such orders as it may think fit" also occurring in section 33(4) of the Income-tax Act came up for consideration before their Lordships of the Supreme Court in the Commissioner of Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat under section 33(4) the Appellate Tribunal has to dispose of the appeal on the merits and cannot short-circuit the same by dismissing it for default of appearance." The decision in the above case applies with equal force to the case under consideration in the writ petition. Under the Andhra Pradesh General Sales Tax Act, 1957, a reference as is contemplated by section 66 of the Income-tax Act is not provided; instead a dealer, as already pointed out, is given a right of revision against an order of the Tribunal where the Tribunal has decided the question erroneously or where there is a failure to decide a. question of law arising. There is no revision against a question of fact. Evidently, the Act contemplates the Tribunal to be a final authority on questions of fact. The proper appreciation of a question of law, in very many cases, may not be possible unless there is a final decision on a question of fact by the Tribunal. Under sub-section (9) of section 21 the Tribunal's order is final subject to the provisions of section 22. Unless it is held that the Tribunal is bound to give a decision on the merits both on questions of law and fact and that it cannot dismiss an appeal f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute may be decided ex parte", the rent Controller is empowered to dismiss an appeal for default. The decision to our mind cannot be of much assistance firstly because the proceedings under the said Act bears no analogy to the assessment proceedings and the appeals preferred under the Andhra Pradesh General Sales Tax Act. Under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the dispute is entirely between a landlord and a tenant. It is a "lis" between the two parties as regards their rights and obligations arising under the special enactment and the Rent Controller is called upon to adjudicate on the rights of the parties and the Rent Controller or the appellate authority is given power to give a decision in accordance with justice, equity and good conscience. On the construction of the provisions of the said rule and the enactment, their Lordships were of the view that the appellate authority had jurisdiction to dismiss a petition or appeal for default of appearance and they also held that such a decision is a decision on the appeal. Here we are concerned with the powers of the Appellate Tribunal under the Sales Tax Act which is enjoined to see that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) of the Mysore Sales Tax Act also authorised the Appellate Tribunal to pass such orders thereon (appeal) as it thinks fit. Manchanda, J., in Hindustan Metal Works v. Sales Tax Officer [1964] 15 S.T.C. 116. also held that rule 68 of the U.P. Sales Tax Rules, 1948, which empowered the appellate authority to dismiss an appeal for default, is ultra vires of section 9 of the U.P. Sales Tax Act. With regard to this decision, the learned Government Pleader argues that the appellate authority under the U.P. Sales Tax Act was not empowered to pass such orders as it thinks fit with regard to the appeal before it. A reading of the judgment in that case discloses that the conclusion was arrived at by the learned Judge on a consideration of the entire scheme of the Act and in particular the power vested in the appellate authority to enhance the tax once an appeal is filed before it. The reasoning of the said decision accords with our view expressed above. In the decision reported in the Commissioner of Incometax, Madras v. Chenniappa Mudaliar[1969] 1 S.C.W.R. 680; 74 I.T.R. 41., the question whether rule 24 of the Appellate Tribunal Rules, in so far as it enables the Tribunal to dismiss an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular order must be found within the four corners of the Act. The decision on an appeal is not a matter of procedure. The manner in which that decision should be arrived at and the steps that have to be adopted before that decision is rendered would be a matter of procedure but not the decision itself. While the Tribunal could regulate the procedure for the disposal of the appeals it could neither enlarge nor abridge the scope of the order which a Tribunal could make with regard to the final disposal of the appeal itself. The disposal of the appeal is not a matter of procedure but one which relates to the power of the Tribunal. In exercise of the authority vested under section 3(4) of the Act, the Tribunal could not in the guise of regulating its procedure enlarge its powers and clothe itself with the power which it did not have under the Act. Much less could the power to dismiss for default be brought within the power of the Tribunal to frame regulations for the disposal of its business. What is envisaged by the use of the expression "disposal of its business" is to authorise the Tribunal to make regulations in regard to the place of hearing of appeals, the time of hearing t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
