9911796707
TMI Blog1994 (11) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... ally the appeals were posted for hearing on August 13, 1985. Since the authorised representative of the assessee was not ready the appeals were dismissed for default and the enhancement petitions filed by the department were allowed. The assessee filed M.P. Nos. 304, 305, 306, 307 and 308 of 1985 before the Tribunal. The assessee's representative contended that since he was sick he was unable to be present in the Tribunal. Therefore he sent a telegram to the Tribunal praying for adjournment. However, the Tribunal did not accept the reason given by the authorised representative for restoration of the appeals. Hence the petitions filed for restoration of the appeals were also dismissed on December 24, 1985. Thereafter, the assessee filed anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal in restoring the appeals by allowing the petitions filed for the second time is without Jurisdiction. For all these reasons, it was submitted that the order passed by the Tribunal in the second set of applications filed by the assessee has to be set aside. 3.. On the other hand, the learned counsel appearing for the assessee submitted as under: The Tribunal is justified in restoring the appeals since the enhancement petitions filed by the department were allowed by the Tribunal without hearing the assessee's representations on an earlier occasion. Since the right of natural justice was denied when the first set of restoration applications was dismissed, the Tribunal was correct in restoring the appeals by allowing the secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed inherent power available with it." 8.. While considering the provisions of section 36(3) of the Madras General Sales Tax Act (Act 1 of 1959), the Full Bench of this Court in Kamadhenu Metal Rolling Mills (P.) Limited v. State of Tamil Nadu [1971] 27 STC 536 held as under: "A provision providing for dismissal for default in appearance or prosecution is undoubtedly one relating to procedure. Chenniappa Mudaliar v. Commissioner of Income-tax [1964] 53 ITR 323 supports this view. The court referred with approval to Poyser v. Minors [1881] 50 LJQB 555; 7 QBD 329, where it was held that a power given by an enactment to the court to frame rules and orders for regulating the practice of the courts, and forms of proceedings therein would c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed under section 36(3), by no stretch of imagination it can be contended that the order passed by the Tribunal dismissing an application for review is an order under section 36(3). Apart from this, the express provision contained in sec- tion 36(8) and (9) will clearly show that the scheme of the Act itself contemplates two separate orders, one under section 36(3) and another under section 36(6). We are referring to the scheme of the Act because even before the amendment of section 38(1) by Tamil Nadu Amending Act No. 31 of 1972, sub-section (8) of section 36 itself contemplated separate orders by the Tribunal, one under sec- tion 36(3) and the other under section 36(6). Therefore, we are unable to accept the argument of the learned Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications for restoration of the appeals and the enhancement petitions. The restoration applications filed for the first time were also dismissed by the Tribunal. As against the common order passed in the first set of applications filed for restorations, the assessee ought to have filed a revision before the High Court. It is not open to the assessee to file the second set of applications for restoration of the appeals and the enhancement applications. When once the Tribunal dismissed the first set of restoration applications, thereafter, it is not open to the Tribunal to review its earlier orders passed in the appeals and the enhancement applications and in the first set of restoration applications. Considering the facts arising in this c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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