IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 S.T.Rev.No.213 of 2008 ----------------------------------------- (AGAINST THE ORDER DATED 28TH NOVEMBER, 2007 OF THE KERALA AGRICULTURAL INCOME TAX & SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, PALAKKAD IN REVIEW PETITION NO.5 OF 2004 IN T.A.NO.641 OF 2000) [ASSESSMENT YEAR 1978-79 (CST)] ---------- REVISION PETITIONER:- ----------------------------------- M/S.SOMADAS & CO., FORT VIEW BUNGLOW, YAKKARA, PALAKKAD DISTRICT, REPRESENTED BY K.S.KRISHNADAS, MANAGING PARTNER BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT:- ---------------------- STATE OF KERALA. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 29/07/2008, ALONG WITH S.T.REV.NO.215 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- H.L.Dattu,C.J. & A.K.Basheer,J. ----------------------------------------------------- S.T.Rev.Nos.213 of 2008 & 215 of 2008 ----------------------------------------------------- Dated, this the 29th day of July, 2008 ORDER H.L.Dattu,C.J. These revision petitions are filed by a dealer registered under the provisions of the Kerala General Sales Tax Act, 1963 (“K.G.S.T.Act” for short) and Central Sales Tax Act, 1956 (“C.S.T.Act” for short), being aggrieved by the orders passed by the Sales Tax Appellate Tribunal, Additional Bench, Palakkad in Review Petition Nos.5 and 5(a) of 2004 in T.A. Nos. 641/2000 and 642/2000, dated 28th November, 2007. 2. The brief facts are: The assessments of the petitioner-Company under the provisions of the C.S.T.Act for the assessment year 1978-79 to 1983-84 was finalised by the assessing authority by Annexure-A order (CST Assessments). The petitioner-Company called in question the said assessment orders before the first appellate authority. The first appellate authority remanded the matter to the assessing authority. Aggrieved by that order, the assessee had preferred the second appeal before the Tribunal, inter-alia, contending that the orders of assessment so passed is beyond the time limit prescribed under the Act. 3. The Tribunal, while disposing of the appeal, had found that the assessing authority had completed the assessments for the assessment S.T.Rev.Nos.213 & 215 of 2008 - 2 - year 1978-79 to 1983-84 only on 12.1.1998 and therefore, the orders passed by the assessing authority was hopelessly barred by limitation and, accordingly, had set aside the orders passed by the assessing authority for the assessment years in question. 4. After the disposal of the appeal, the Revenue had filed a review petition before the Tribunal, inter-alia, seeking the review of the orders passed by the Tribunal. 5. The Tribunal has allowed the review application filed by the Revenue by its order dated 21.12.2006. This was done by the Tribunal without affording an opportunity of hearing to the assessee. Therefore, the assessee was before this Court in S.T.Rev.Nos.94 and 95 of 2007. This Court disposed of the revision petition by its order dated 9.3.2007 and directed the Tribunal to reconsider the review applications/petitions filed by the Revenue afresh and in accordance with law. 6. The Tribunal, thereafter, has passed an order dated 28.11.2007. It is the correctness or otherwise of the said orders that is called in question by the assessee in these revision petitions. 7. The assessee has framed the following questions of law for our consideration and decision. They are as under: “i) Whether on the facts and in the circumstances of the case has not the Appellate Tribunal gone wrong in exercising the powers under S.T.Rev.Nos.213 & 215 of 2008 - 3 - Section 39(7) of the KGST Act, when no grounds are pointed out by the revenue to invoke the said provision? ii) Whether on the facts and in the circumstances of the case under the KGST Act, has not the Appellate Tribunal gone wrong in failing to note that no “new and important” facts are brought to its consideration by the revenue by Annexure-B application? iii) Has not the Appellate Tribunal gone wrong in entertaining the review petition filed beyond the time prescribed under the statute when no power to condone delay is conferred on the tribunal?” 8. Sri.Harisankar V.Menon, learned counsel appearing for the assessee, as usual, vehemently contends before this Court, that, in view of sub-clause (a) of sub-section (7) of Section 39 of the Act, the Tribunal could have entertained the review petition filed by the Revenue only on the ground that there is discovery of new and important facts, which, after the exercise of due diligence, were not within the knowledge of the Revenue or could not be produced by the Revenue when the matter was disposed of by the Tribunal. Since that was not the case pleaded by the revenue, the Appellate Tribunal ought not to have entertained the revenue's review petition. Apart from this, the learned counsel would submit, that, the review application filed by the Revenue was barred by limitation, in view of S.T.Rev.Nos.213 & 215 of 2008 - 4 - sub-clause (b) of sub-section (7) of Section 39 of the Act and even on this ground the Tribunal should have rejected the review petition filed by the revenue. 9. Sections 39(7)(a) and 39(7)(b) are as under: “(7)(a) The appellant or the respondent may apply for review of any order passed by the Appellate Tribunal under sub-section (4) on the basis of the discovery of new and important facts which after the exercise of due diligence were not within his knowledge or could not be produced by him when the order was made: Provided that no such application shall be preferred more than once in respect of the same order. (b) The application for review shall be preferred in the prescribed manner and within one year from the date on which a copy of the order to which the application relates was served on the applicant in the manner prescribed, and where the application is preferred by any person other than an officer empowered by the Government under sub-section (1), it shall be accompanied by a fee of rupees two hundred and fifty”. 10. A reading of the aforesaid provisions would indicate that a review application could be filed by either of the parties only on the basis of the discovery of new and important facts, which, after exercise of due diligence were not within the knowledge of the parties or could not be produced when the order was passed. Sub-clause (b) of sub-section (7) of S.T.Rev.Nos.213 & 215 of 2008 - 5 - Section 39 envisages, that, such application shall be filed within one year from the date on which a copy of the order was served on the review applicant. 11. In the instant case, the Tribunal had disposed of the appeal by its order dated 31.10.2002. While doing so, the Tribunal was of the view that the orders of assessment passed for the assessment years 1978-79 to 1986-87 by the assessing authority are hopelessly barred by limitation. While doing so, the Tribunal had not noticed the proviso appended to sub-section (6) of Section 17 of the Act. The said sub-section provides extended period of limitation for completion of the assessments. The proviso says that assessments in respect of which accounts were checked before 1st April, 1998 shall be completed on or before 31.03.1999. 12. In the instant case, the assessing authority has completed the assessments for all these years on 12.1.1998. That is much prior to the time limit prescribed under the proviso to sub-section (6) of Section 17 of the Act. This proviso ought to have been noticed by the Tribunal while allowing the assessee's appeal. Neither the Tribunal nor the Revenue has brought to the notice the aforesaid proviso when the matters were disposed of by the Tribunal. The order passed by the Tribunal is contrary to the statutory provision and therefore, ab initio invalid and noticing this aspect of the matter, the Tribunal in our view, rightly has entertained the revenue's S.T.Rev.Nos.213 & 215 of 2008 - 6 - review petition. We are further of the opinion, if the Tribunal had decided the issue posed before it after considering all the factual and legal aspects, then the review petition cannot be allowed, on the ground that erroneous decision has been taken on the question of fact and law. In the instant case, as we have already noticed, the Tribunal while deciding the assessee's appeal had overlooked the statutory provisions, though it was very much available in the statute book. Such an erroneous order, when it is brought to their notice, the Tribunal is not expected to brush it aside, on the ground, it would amount to reconsideration of the concluded matter. If it had done, it would only amount to abdication of its power and jurisdiction. Therefore, in our considered opinion, the Tribunal was fully justified in invoking its review power to correct an irregular and improper order. Therefore, we cannot accept the first contention canvassed by learned counsel for the assessee. 13. In so far as the contention canvassed regarding limitation, in our opinion, the same is not available to the petitioner, for the reason, that this Court, while disposing of the assessee's own revision, S.T.Rev.No.94 of 2007, dated 9th March 2007, had directed the Tribunal to consider the review application filed by the Revenue in accordance with law after affording an opportunity of hearing to the petitioner. In fact, this Court did not permit the revision petitioner to take up any other contention except on S.T.Rev.Nos.213 & 215 of 2008 - 7 - the merits of the case. In that view of the matter, even this point raised by the assessee's learned counsel is not available to him to be agitated in these revision petitions. 14. In the above view of the matter, while confirming the orders passed by the Tribunal, we reject these revision petitions. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer vku/dk Judge