9911796707
TMI Blog1977 (3) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... urt reversed the decision of this court in Central Wines, Hyderabad v. Deputy Commissioner[1976] 37 S.T.C. 467; (1976) 1 A.P.L.J. 71. in McDowell Co. Ltd. v. Commercial Tax Officer[1977] 39 S.T.C. 151 (S.C.). The Supreme Court held that the excise duty or the countervailing duty paid directly to the excise authorities of the State or deposited directly in the State exchequer in respect of Indian liquor by the buyers thereof before removing it from the distillery or the bonded warehouse and not included in the sale bills issued either by the manufacturer or the owner of the bonded warehouse could not form part of their turnover and were not liable to sales tax under the Andhra Pradesh General Sales Tax Act, 1957. On 17th November, 1976, these two review petitions were filed to review the orders of the High Court dated 4th February, 1976. It is submitted by Sri Anantha Babu, the learned counsel for the petitioners, that under section 22(7)(a) of the Act, the High Court can review an order passed by it under sub-section (4) of that section on the basis of facts which were not before it when it passed the order; that the decision of the Supreme Court is a fact, which was not befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment under section 14, an appeal is provided to the appellate authority under section 19. The appellate authority can confirm, reduce, enhance or annul the assessment or the penalty or both, or set aside the assessment or penalty or both and direct the assessing authority to pass a fresh order after such further inquiry as may be directed. It can also remand the case for inquiry and report on any specified point or points. Section 20 empowers the Board of Revenue to revise an order or proceeding of a subordinate authority for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such proceeding and may pass such order as it thinks fit. Under sub-section (2), the powers of revision can also be exercised by the Deputy Commissioner and the Commercial Tax Officer in case of orders passed by the authorities or officers subordinate to them. But, if an issue or question is the subject-matter of an appeal or if it was decided by the Appellate Tribunal under section 21, the power of revision cannot be exercised. Under section 21, a dealer objecting to an order passed or proceeding recorded under section 19, or by a Deputy Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority under section 19 both on fact and law. Another appeal is provided to the Appellate Tribunal under section 21. That can also be both on fact and law. Against an order of the Appellate Tribunal a revision is provided to the High Court on questions of law. It can normally decide questions of law that properly arise out of an assessment order which has its roots in facts that were in existence when the assessment was made. Therefore, when the High Court is given power to review its order on the basis of the facts which were not before it when it passed the order, it necessarily means that the facts were in existence by the date of its order but were not before it, when it passed the order in revision. It can never mean that it can review on the basis of facts that came into existence after it had passed the order in revision. Then they will not be facts on the date of its order in revision. Fact is a thing existing. What happened yesterday is a fact today. What is going to happen tomorrow is not a fact today. According to Chambers's Twentieth Century Dictionary (New Edition 1972), "fact" means "a deed, act, or anything done". Further, the review contemplated is of an order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be basic facts, facts in issue. In appropriate cases, even evidentiary facts may be so interlinked with facts in issue that they may also fall within the purview of that sub-section: vide Chandaji Kubaji Co. v. State of Andhra Pradesh[1960] 11 S.T.C. 451 (S.C.). Secondly, even assuming that judgment is a fact, as contemplated by the sub-section, still we are of the opinion that a judgment pronounced by the Supreme Court subsequently is not a fact within the meaning of that sub-section. In this connection, Sri Anantha Babu referred to section 34(1)(b) of the Indian Income-tax Act, 1922, and the decisions of the Supreme Court in Maharaj Kumar Kamal Singh v. Commissioner of Income-tax(2) and Kalyanji Mavji Co., v. Commissioner of Income-tax.(3) Clause (b) of section 34(1) (after amendment in 1948), inter alia, provides that "notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, if the Income-tax Officer has, in consequence of information in his possession, reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year, or have been underassessed, or assessed at too low a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "(1) where the information is as to the true and correct state of the law derived from relevant judicial decisions; (2) where in the original assessment the income liable to tax has escaped assessment due to oversight, inadvertence or a mistake committed by the Income-tax Officer; (3) where the information is derived from an external source of any kind; such external source would include discovery of new and important matters or knowledge of fresh facts which were not present at the time of the original assessment; and (4) where the information may be obtained even from the record of the original assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law." As stated by us already, the wording of the two sections is different and similarly the ambit and scope of the two sections in the light of the scheme of the Act. Therefore, the decisions referred to by the learned counsel for the petitioners are of no assistance while interpreting the provisions of section 22(7) of the Andhra Pradesh General Sales Tax Act. In the result, we hold that the decision of the Supreme Court rendered subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
