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TMI Blog1981 (9) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... b General Sales Tax Act: "(i) Whether, on the facts and the circumstances of the case, this case falls within the ambit of section 11-A or section 21(1) of the Act? (ii) Whether the assessee in law was afforded reasonable opportunity by the revising authority before passing the order?" The Division Bench, before which the matter came up in the first instance, was inclined to take the view that the second question did not arise out of the order of the Tribunal. However, the learned counsel for the assessee-petitioner pressed his claim on the ground that though the Tribunal had not dealt with the question in its order yet this had been specifically raised in the grounds of revision, annexure H, and the positive stand taken was that such a question of law once raised in the grounds of revision even though not discussed or decided by the Tribunal would still be deemed to arise therefrom on the presumption that the same had been disallowed unless there was good evidence to show that it had been specifically given up. Basic reliance for this contention was on the Division Bench judgment of the Orissa High Court in Sitaram Kamal Prasad v. Collector of Sales Tax, Orissa [1955] 6 STC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61 SC 1633, it is necessary to view the larger scheme of the Punjab General Sales Tax Act which cannot be lost sight of. Section 20 of this Act provides for an appeal whilst the succeeding section 21 is the source for the exercise of the revisional power. Sections 21-A and 21-B deal with rectification of mistakes and disposal of pending appeals and applications. It is thereafter that section 22 pertaining to a reference to the High Court finds its place. Even a broad conspectus of the aforesaid five sections would indicate that the legislature's concern was to restrict severely the field of reference to the High Court. Whilst the appellate power under section 20 is obviously wide ranging, the revisional power under section 21 is restricted to the legality and propriety of the proceeding only. The power of reference is even more constricted and hedged in by two pre-eminent conditions, namely, that the reference can only be on a question of law (barring all questions of fact) and not merely that but further that such a question of law must arise out of the order of the Tribunal itself. The obvious intent of the legislature and the scheme of the statute, therefore, is to narrow down a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 181. It, however, calls for notice that Tendolkar, J., who was the other member of the Division Bench, refrained from expressing any opinion on this point altogether. However, all this is now a matter of academic judicial history because of the synthesis arrived at by the final court in Scindia Steam Navigation's case AIR 1961 SC 1633 summing up and formulating the law authoritatively in the following four propositions in paragraph 31 of the report: "(1) When a question is raised before the Tribunal and is dealt with by it, it is clearly one arising out of its order. (2) When a question of law is raised before the Tribunal but the Tribunal fails to deal with it, it must be deemed to have been dealt with by it, and is, therefore, one arising out of its order. (3) When a question is not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order. (4) When a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it." Their Lordships further epitomised the legal position by observing as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual arguing, raising or pressing the same before the Tribunal. 6.. Once the true import of the phrase "raised before the Tribunal" is settled, the real question in its practical application becomes one of the presumption that should be raised in a case where a point of law has neither been noticed nor adjudicated in the order of the Tribunal. The piquant situation which particularly falls for consideration is, where the question of law in fact has been taken in the grounds of appeal or revision, but the same is neither touched upon nor pronounced even remotely in the order of the Tribunal. What is the true presumption to be raised in such a case? Is it that such a point of law must be deemed to have been raised because it found a place in the grounds of appeal or revision and it should be presumed that it was wrongly or inadvertently ignored by the Tribunal? Or, is it in the reverse that because it finds no mention at all in the order, it must be presumed necessarily to have been either given up expressly or impliedly and consequently not raised before the Tribunal at all. 7.. I take the view that the latter presumption (though rebuttable) is the one which is not only to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indeed a sagacious Advocate would only press the most meritorious of law arising in his case and the rest are sometimes expressly or in any case impliedly given up the very factum of these having not been urged before the Tribunal. Again, there is no inflexible rule that the court or the tribunal must record that no point other than one adjudicated upon by it has been pressed during the course of the hearing. On the other hand, it is by now well-established that what is not adjudicated upon or noticed by the Tribunal in its order would be initially presumed to have not been raised before it. However, this presumption is not conclusive though the burden is heavy on the party to establish the contrary. Consequently, where number of points of law find mention in the grounds of appeal or revision, but only some of them are expressly noticed or adjudicated upon by the Tribunal in its order, the presumption must be raised that the rest were given up expressly or impliedly. It cannot be in the reverse that unless it is positively shown that they are given up they must be deemed to have been both raised before the Tribunal and further presumed that they were deliberately or inadvertently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the Tribunal itself, it cannot be deemed to arise out of it. Mr. R. N. Narula, the learned counsel for the petitioner, conceded that the view in A. Abboy Chetty and Co.'s case AIR 1948 Mad 181 was directly contrary to his stand and had in fact attempted to assail the same. With the greatest respect it appears to us that the learned judges in Sitaram Kamal Prasad's case [1955] 6 STC 339; AIR 1953 Orissa 7 whilst purporting to apply what they themselves called the "narrower rule", in actual fact gave it the widest application. A close analysis of the number of observations in the last paragraph No. 6 of the Report would show that the conclusion arrived at does not even remotely flow from A. Abboy Chetty and Co.'s case AIR 1948 Mad 181 and in fact appears to be running directly counter to the same. It was sought to be held that if a point was taken in the grounds of appeal or revision, then it must be presumed to have been raised before the Tribunal and arises out of its order on the presumption that it was ignored by it, unless it is shown conclusively that such a point was expressly given up. I am of the view that this conclusion cannot possibly be sustained on the ratio of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th January, 1970) is printed below]: KELVINATOR OF INDIA LTD. v. THE HARYANA STATE MAHAJAN, J.-This is the assessee's application under section 22(2) of the Punjab General Sales Tax Act, 1948. The assessee made an application under section 22(1) to the Tribunal to state the following four questions of law for the opinion of this Court: "(1) Whether, in view of the facts stated in paras 1 to 7 above, the sale of cooler sub-assemblies took place in Delhi or Faridabad? (2) Whether a genuine difference of opinion on a point of law, as held by the Deputy Excise and Taxation Commissioner, Appeals, can be said to be a wilful act on the part of the dealer for his failure to apply for registration under the Punjab General Sales Tax Act, making him liable to a penalty under section 11(6) of the Punjab General Sales Tax Act? (3) Whether the applicants are dealers as defined in section 2(d) in view of the admitted fact that all the goods manufactured by the applicant were never delivered for purposes of consumption in the State of Punjab? (4) If the applicants are held to be not dealers as defined in section 2(d) of the Punjab General Sales Tax Act, 1948, are they liable to assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application to the Financial Commissioner for reference under section 22(1) of the Sales Tax Act. In fact the Financial Commissioner dealt with them in his order disposing of section 22(1) application. At one time we were of the view that only one question of law, namely, the first question arose out of the order of the Financial Commissioner dated 22nd March, 1966, but in view of the decision of the Orissa High Court in Sitaram Kamal Prasad v. Collector of Sales Tax, Orissa [1955] 6 STC 339; AIR 1953 Orissa 7 and in view of the facts and circumstances how the revision and the reference application were disposed, we have come to hold that the suggested questions of law excepting the fourth question do arise out of the order of the Financial Commissioner. In Sitaram's case [1955] 6 STC 339; AIR 1953 Orissa 7 it was observed: "The actual order passed by the Revenue Commissioner itself is good evidence as to what questions arise out of it, but when a particular point has been categorically raised in the petition filed before him, but is not dealt with in the order and there is nothing to show that that point has been given up, I think it must be taken that it is a point raised be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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