9911796707
TMI Blog1993 (8) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal by a common judgment on December 27, 1988. The assessee moved the Tribunal by two review applications, viz., 6 and 7 of 1990 for review of the order passed by the Tribunal in the appeals T.A. Nos. 758 and 759 of 1988. The Chairman of the Tribunal decided the matter in favour of the assessee on merit. The Departmental Member decided the matter against the assessee. While doing so, he held the review applications to be not maintainable. The Chairman did not express any opinion on the maintainability of the review applications. In view of the difference between the Chairman and the Departmental Member the cases were referred to a third Member-Member (Accounts) under section 39(4) read with section 4(3C)(i) of the Kerala General Sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. The Chairman is of the view that the application for review is maintainable. 3.. After receipt of the findings of the Chairman and the Member (Accounts), revision petitioner sought amendment of the revision petition by incorporating an additional question of law in paragraph (6) of the revision petition. That question is to the following effect: "Whether, on the facts and in the circumstances of the case the Tribunal is right in holding that the revision application is not maintainable in law?" 4.. Heard counsel for revision petitioner Shri P.G.K. Wariyar and Senior Government Pleader Shri V.C. James, for respondent. 5.. The first question to be considered in these revisions is whether the review applications filed by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner has pointed out the mistake committed in drafting the question of law. The question that really arises is whether the Tribunal was right in holding that the review application is not maintainable in law. Petitioner is therefore permitted to incorporate the additional ground in this form. 8.. The ground for review of the order of the Tribunal is stated to be the discovery of a new material since the date of the order. X-ray film according to the petitioner, is covered by the entry "photographic films " in item No. 151 of the First Schedule to the Kerala General Sales Tax Act. Petitioner was prevented from bringing this fact to the notice of the Tribunal at the time when final order was passed in the appeals whereas it came to his no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Sushil Flour, Dal Oil Mills v. Chief Commissioner [1982] 50 STC 222, learned counsel for the revision petitioner would contend that in case an order has been passed by the court in ignorance of a material provision of law which is likely to affect the merits of the order that by itself makes out a good ground for review of the order. It is pointed out that an error of law was committed by the Tribunal in not treating X-ray films as photographic films coming within entry 151 of the First Schedule. This was discovered only since the date of the Tribunal's order. In order to enable petitioner to get the order of the Tribunal reviewed discovery of a new/and important fact has to be established and the further aspect that after exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts, the applicant can avail himself of the remedy of review. In either event, the facts must be such which came to the knowledge of the assessee subsequently and which could not be produced after the exercise of due diligence. The requirement of exercise of due diligence applies to both the limits, viz., knowledge and inability to produce." 11.. We are in respectful agreement with the above observations of the Madras High Court. The result is that there has not been a discovery of new and important fact since the date of the order of the Tribunal enabling petitioner to seek review of the order. The petition was rightly held to be not maintainable by the majority of the members of the Tribunal. There is no error of law requiring cor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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