Case: M/S. Chandaji Kubaji &amp; Co.    Vs. The State Of Andhra Pradesh

S. 12B of the Act and contended that the view which the tribunal took of S. 12A*(6) (a) 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.".... .... .... ..."Section 12A (6) (a) 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 S. 12A (6) (a), it held that the applications for review were rightly rejected.5. 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 S. 12A (6) (a) of the Act. Our attention has been drawn to a subsequent Full Bench decision of the same High Court in The State of Andhra v. Sri Arisetty Sriramulu, AIR 1957 Andh Pra 130, 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 S. 12A (6) (a) may be taken to have been used in the sense in which it is used in 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".6. 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 S. 12A (6) (a) of the Act. A Division Bench expressed the view that "facts" in the sub-section meant basic facts, that is, 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 S. 12A (6) (a) 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 sub-section. 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 S. 12A (6) (a). We say this with great respect, but this is precisely what the section does not permit. The Full Bench said:"The language of S. 12A (6) (a) 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 S. 12A (6) (a) 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 inconvenience 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 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 view that the provision in S. 12A (6) (a) 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 sub-section 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".7. In the appeals before us there was intentional withholding or suppression of evidence. In one 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 Telegu 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 S. 12A (6) (a) by reason of his own deliberate negligence and intentional withholding of evidence.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. 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 S. 12A (6) (a) of the Act. A Division Bench expressed the view that "facts" in the sub-section meant basic facts, that is, 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 S. 12A (6) (a) 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 sub-section. 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 S. 12A (6) (a). We say this with great respect, but this is precisely what the section does notis, 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 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 view that the provision in S. 12A (6) (a) 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 sub-section 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".7. In the appeals before us there was intentional withholding or suppression of evidence. In one 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 Telegu 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 S. 12A (6) (a) by reason of his own deliberate negligence and intentional withholding of evidence.