Appeal No 420 of 1957
Appeal by special leave from the judgment and order dated August 8 1955 of the former Andhra High Court in Tax Revision Case No 2 of 1955
WITH Civil Appeal No 142 of 1958
Appeal from the judgment and order dated July 28 1955 of the former Andhra High Court in TRC No 32 of 1954
NRajeswara Rao and Sardar Bahadur for the appellants in both the appeals
TV R Tatachari and T M Sen for the respondent in both the appeals
April 29
The Judgment of the Court was delivered by SK DAS J
These two appeals one with special leave from this Court and the other on a certificate granted by the High Court of Andhra have been heard together and this judgment will govern them both
The facts are similar and the short question for decision is whether the appellant Messrs Chandaji Kubaji and Company Guntur was entitled to apply under section 12A6a of the Madras General Sales Tax Act 1939 Madras Act IX of 1939 as applied to Andhra for a review of an order of the Appellate Tribunal made under suchs
4 of section 12A of the said Act
The relevant facts are these
The appellant is a dealer in ghee groundnut oil chillies etc and was carrying on its business at Guntur
In Civil Appeal No 420 of 1957 the Deputy Commercial Tax Officer Guntur assessed the appellant to sales tax for the year 1948 49 on a turnover of Rs 2869151 and odd
The appellant having unsuccessfully appealed to the Commercial Tax Officer Guntur made a second appeal to the Sales Tax Appellate Tribunal hereinafter called 105 806 the Tribunal
Before the Tribunal the appellant contended inter alia that out of the total turnover a sum of Rs 1045156 and odd related to commission purchase of commodities taxable at the stage of sale on behalf of principals resident outside the State of Andhra and was not therefore taxable by the respondent State
In respect of this plea the Tribunal said  As regards the alleged commission agency business to the tune of Rs 1045156 4 9 the appellants have neither advanced arguments nor placed before us any materials in support of the contention raised in this behalf 
In the result the Tribunal dismissed the appeal on May 30 1953
In Civil Appeal No 142 of 1958 the appellant was assessed by the Deputy Commercial Tax Officer Guntur on a net turnover of Rs 2872083 and odd for the year 1949 50
The appellant objected to the inclusion of a sum of Rs 1989076 and odd on the ground that the goods relating thereto bad been consigned to self and despatched to places outside the state and in fact were delivered outside the State this plea was disallowed by the Sales Tax autho rities and the Tribunal said  In the grounds of appeal it has been urged with regard to these sale transactions the ownership in the goods continued to vest in the appellant till the sale price was collected and the goods were delivered to the buyers at places outside the State
Beyond advancing a broad argument of this type no material has been placed before us or was placed before the assessing authority or the Commercial Tax Officer to support the appellant s version that the property in the goods passed to the buyer only at places outside the State
x x x It is not denied that though contracts in writing were not entered into these transactions were the result of correspondence between the appellant on the one hand as seller and various persons on the other as buyers
It is conceded that such correspondence exists but the appellants have not chosen 807 to make this correspondence available either to us or to the officer below
When documents which would establish the nature of the transaction beyond doubt are available and have been withheld by the appellant the normal result is that an inference adverse to his contention has to be drawn
We are accordingly of the opinion that in this case the sales must be deemed to have taken place within this State and that they have been rightly included in the taxable turnover 
The appeal was disposed of on this finding on August 191952
In respect of both the aforesaid orders the appellant filed applications for review under section 12A6a of the Act
That section in so far as it is relevant for these appeals reads  12A6a The Appellate Tribunal may on the application either of the assessee or of the Deputy Commissioner review any order passed by it under sub section 4 on the basis of facts which were not before it when it passed the order Provided that no such application shall be preferred more than once in respect of the same order 
The point taken on behalf of the appellant in Civil Appeal No 420 of 1957 was that the accounts were in Gujrati language and as there was none on behalf of the appellant who could give instructions to the appellant s advocate either in Telugu or English when the appeal was heard by the Tribunal the appellant could hot place the materials before the Tribunal
In the other appeal the point taken in support of the application for review was that the relevant correspondence was mixed up with other records and so it could not be placed before the Tribunal
The Tribunal rejected the applications for review on the ground that a failure to produce the necessary materials in support of a plea taken before it due either to gross negligence or deliberate withholding did not come within the reason of section 12A6a as stated in the expression  on the basis of facts which were not before it when it passed the order 
The appellant then moved the High Court in revision under section 12B of the Act and 808 contended that the view which the Tribunal took of s12A6a was not correct
The High Court drew a distinction between what it called basic facts and evidence in support thereof and said  There is an essential distinction between a fact and the evidence to establish that fact x x x Section 12A6a in our view is not intended to give two opportunities to every assessee to establish his case before a Tribunal
It is really conceived in the interests of  the assessee who was not able to place some facts before the Tribunal at the first instance which would have made a difference in its decision 
In the view which the High Court took of section 12A6a it held that the applications for review were rightly rejected
In the two appeals before us the argument has been that the Tribunal as also the High Court took an erroneous view of the true scope and effect of section 12A 6a of the Act
Our attention has been drawn to a Subsequent Full Bench decision of the same High Court in The State of Andhra vs Sri Arisetty Sriramulu 1 and it has been submitted that the view expressed therein is the correct view
In that decision it was held that the word  facts  in section 12A6a may be taken to have been used in the sense in which it is used in the law of evidence that is to say as including the factum probandum or the principal fact to be proved and the factum probans or the evidentiary facts from which the principal fact follows immediately or by inference facts may be either facts in issue  which are the principal matters in dispute or relevant facts which are evidentiary and which directly or by inference prove or disprove the  facts in issue 
In the view which we have taken of these two appeals it is not necessary to discuss at great length the divergent views taken in the High Court of Andhra as to the true scope and effect of section 12A6a of the Act
A Division Bench expressed the view that facts  in the sub section meant basic facts that is 1 AIR 1957 Andhra Pradesh 130
809 facts necessary to sustain a claim and drew a distinction between such facts and the evidence required to establish them it further expressed the view that under section 12A6a the Tribunal may review its order if any of the basic facts were not present before it when it passed the order but the sub section was not meant to give a second opportunity to a party to produce fresh evidence
The Full Bench took a wider view of the sub section and said that facts referred to in the sub section might be facts in issue or  evidentiary facts 
We think that in an appropriate case evidentiary facts may be so interlinked with the facts in issue that they may also fall within the purview of the subsection
The Full Bench however went a step further and said that even if relevant evidentiary facts were intentionally or deliberately withheld or suppressed the party guilty of such suppression or withholding would still be entitled to ask for a review under section 12A6a
We say this with great respect but this is precisely what the section does not permit
The Full Bench said  The language of section 12A6a is so wide and general that it might possibly lead to inconvenient results in that it might enable an assessee to get a further chance of hearing before the Appellate Tribunal on the strength of evidence which he negligently or designedly failed to produce at the first hearing
As the language used in section 12A6a is clear and unequivocal and in our opinion capable only of one interpretation we are bound to give effect to it in spite of the possibility of any incon venience resulting therefrom
The inconvenience if any is not to the assessee for whose benefit the provision is intended
In any case the remedy is with the Legislature
It is we think doing great violence to language to say that an intentional or deliberate withholding or suppression of evidence in support of a plea or contention or a basic fact urged before the Tribunal is comprehended within the expression  facts which were not before it Tribunal when it passed the order 
To so construe the section is to put a premium 810 on deliberate negligence and fraud and amounts to allowing a party to profit from its own wrong
We do not think that such a construction follows from the language used which is more consistent with the view that the provision in section 12A6a permits a review when through some oversight mistake or error the necessary facts basic or evidentiary were not present before the Court when it passed the order sought to be reviewed
It is entirely wrong to think that the subsection permits a party to play hide and seek with a judicial Tribunal that is to say to raise a fact in issue or evidentiary fact as a plea in support of a claim and at the same time deliberately withhold the evidence in support thereof
Such a situation cannot be said to be one within the meaning of the expression  facts not present before the Tribunal 
In the appeals before us there was intentional withholding or suppression of evidence
In the case the materials were not produced on the plea that they were written in Gujrati and nobody was available to instruct counsel in English or Telugu and in the other on an equally specious plea that the correspondence was mixed up with other records for about two years
These two appeals can be disposed of on this short ground that the appellant was not entitled to ask for review under section 12A6a by reason of his own deliberate negligence and intentional withholding of evidence
We see no merit in these appeals and dismiss them with costs
Appeals dismissed


Summary:
In exercise of the powers conferred by section 68C of the  the General Manager of the Mysore Government Road Transport Department published a scheme for the exclusion of private operators on certain routes in a specified area and reservation of those routes for the State Transport Undertaking
The scheme was approved by the Government under s 68D2 of the Act after the Chief Minister of the State had given an opportunity to the operators affected by the scheme to make representations objecting to it The petitioners who were 743 private operators challenged the validity of the scheme and the action taken by the Government pursuant to it on the grounds inter alia 1 that the petitioners have a fundamental right to carry on the business of plying stage carriages and that the provisions of Ch
IVA of the  which provide for the right of the State to exclusive right to carry on motor transport business are invalid2that by Ch
IVA Parliament had merely attempted to regulate the procedure for entry by the State into the business of motor transport in the State and that in the absence of legislation expressly undertaken by the State in that behalf that State was incompetent to enter into the arena of motor transport business to the exclusion of private operators and 3 that the scheme violated the equal protection clause of the Constitution because only fourteen out of a total of thirty one routes on which stage carriages were plied for public transport in the area specified were covered by the scheme  Held 1 that the expression  commercial and industrial monopolies  in entry 21 of List III of the Seventh Schedule of the Constitution of India is wide enough to include grant or creation of commercial or industrial monopolies to the State and citizens as well as control of monopolies
2 that it is competent for the Parliament to enact Ch
IVA of the Act under entry 21 read with entry 35 of List III
3that the scheme framed under section 68C of the may be regarded as law within the meaning of article 196 of the Constitution made by the State excluding private operators from notified routes or notified areas and immune from the attack that it infringes the fundamental right guaranteed by article 191g
4that on a true reading the scheme in question was approved in relation to the fourteen notified routes and not in relation to a notified area and that as a scheme under section 68C of the Act may be one in relation to an area or any route or portion thereof the scheme could not be challenged as discriminatory