Case: Thungabhadra Industries Ltd Vs. The Government Of Andhra Pradesh

that a certificate had been granted on a previous occasion. We have extracted the text of this order of January 1961 in which this argument is noticed and it is stated that it was the only point urged before the Court. The question then arises as to what is meant by "in similar circumstances in regard to a previous year". Learned Counsel for the respondent submits that we should understand these words to mean that the appellant relied on the order dated February 21, 1956 granting the certificate of fitness in regard to the decision of the High Court in T. R. C. 120 of 1953 solely as some sort of precedent and no more. On that basis learned Counsel strenuously contended that the mere fact that in regard to an earlier year a certificate was granted would not by itself render an order refusing a certificate in a later year erroneous on the ground of patent error. We have already dealt with this aspect of the matter. We do not, however, agree that this is the proper construction of the argument that they rejected. The order dated February 21, 1956 in relation to the previous year was placed before the court and was relied on not as a binding precedent to be followed but as setting out the particular substantial questions of law that arose for decision in the appeals, and the attention of the court was drawn to the terms of the previous order with a view to point out the failure to appreciate the existence of these questions and to make out that the statement in the order of September 1959 that no substantial question of law was involved in the appeals was erroneous on the face of it. This is made perfectly clear by the contents of the petition for review where the aspect we have just now set out is enunciated. The earlier order being of the same Court and of a Bench composed in part of the same Judges the earlier order was referred to as a convenient summary of the various points of law that arose for the purpose of bringing to the notice of the Court the error which it committed in stating that no substantial question of law arose in the appeals. If by the first sentence the learned Judges meant that the contention which they were called upon to consider was directed to claim the previous order of 1956 as a binding precedent, they failed to appreciate the substance of the appellants argument. If, however, they meant that the matters set out by them in their order granting a certificate in relation to their decision in T. R. C. 120 of 1953 were not also involved in their judgment in T. R. Cs. 75 to 77 they were in error, for it is the case of no one that the questions of law involved were not identical. If, besides they meant to say that these were not substantial questions of law within Art. 133(1), they were again guilty of error. The reasoning, therefore, of the learned Judges in the order now under appeal, is no ground for rejecting the applications to review their orders of September 1959. We therefore consider that the learned Judges were in error in rejecting the application for review and we hold that the petitions for review should have been allowed. We only desire to add that in so holding we have not in any manner taken into account or been influenced by the view expressed by this Court in (1961) 2 SCR 14 : (AIR 1961 SC 412 ) regarding the construction of Rule 18(2) of the Turnover and Assessment Rules, since that decision is wholly irrelevant for considering the correctness of the order rejecting the applications for review which is the only question for decision in these appeals.13. Before concluding we desire to make an observation arising out of an appeal made to us by learned Counsel for the respondent that even if the appeals were allowed we should make no direction as regards costs against his client. The right of the appellant to the benefit of the exemption which he claimed and which was disallowed to him by the judgment of the High Court in T. R. Cs. 75, 76 and 77 really depended on the correct construction of R. 18(2) of the Turnover and Assessment Rules and in particular on the meaning of the expression "groundnut oil" occurring there - whether it included "hydrogenated oil". This Court in its judgment in (1961) 2 SCR 14 : (AIR 1961 SC 412 ) pronounced on the proper construction of the word "groundnut oil" occurring in R. 18 of the Turnover and Assessment Rules as they then stood. The assessment proceeding for 1950-51, 1951-52 and 1952-53 had not attained finality against the assessee by the termination of all proceedings, because there were still applications for review pending before the High Court. In the circumstances, it would have been reasonable to expect that the Sales Tax authorities should have afforded the appellant the benefit of the decision of this court in regard to these later years also unless there was some insuperable difficulty or other circumstance in the way of their doing so, and learned Counsel for the respondent has brought none to our notice. That is so far as regards the merits of the controversy in the tax revision cases in which certificates were sought. Of course if on any technical or similar points the State is entitled to succeed indisputably they would not be prevented from doing so and they would be entitled to collect the tax as assessed and as decided in its favour by the High Court. But when the respondent fails in the objections raised to prevent the matter coming to this Court, we do not see any justification for the plea that costs should not follow the event but that the appellant should be deprived of its right to costs.

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

Explanation:
1[ds]8. Order XLVII R. 1(1) of the Civil Procedure Code permits an application for review being filed "from a decree or order from which an appeal is allowed but from which no appeal has been preferred." In the present case, it would be seen, on the date when the application for review was filed the appellant had not filed an appeal to this Court and therefore the terms of O. XLVII R. 1(1) did not stand in the way of the petition for review being entertained. Learned Counsel for the respondent did not contest this position. Nor could we read the judgment of the High Court as rejecting the petition for review on that ground. The crucial date for determining whether or not the terms of O. XLVII R. 1(1) are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the court hearing the review petition would come to an end.Before concluding we desire to make an observation arising out of an appeal made to us by learned Counsel for the respondent that even if the appeals were allowed we should make no direction as regards costs against his client. The right of the appellant to the benefit of the exemption which he claimed and which was disallowed to him by the judgment of the High Court in T. R. Cs. 75, 76 and 77 really depended on the correct construction of R. 18(2) of the Turnover and Assessment Rules and in particular on the meaning of the expression "groundnut oil" occurring there - whether it included "hydrogenated oil". This Court in its judgment in (1961) 2 SCR 14   : (AIR 1961 SC 412  ) pronounced on the proper construction of the word "groundnut oil" occurring in R. 18 of the Turnover and Assessment Rules as they then stood. The assessment proceeding for 1950-51, 1951-52 and 1952-53 had not attained finality against the assessee by the termination of all proceedings, because there were still applications for review pending before the High Court. In the circumstances, it would have been reasonable to expect that the Sales Tax authorities should have afforded the appellant the benefit of the decision of this court in regard to these later years also unless there was some insuperable difficulty or other circumstance in the way of their doing so, and learned Counsel for the respondent has brought none to our notice. That is so far as regards the merits of the controversy in the tax revision cases in which certificates were sought. Of course if on any technical or similar points the State is entitled to succeed indisputably they would not be prevented from doing so and they would be entitled to collect the tax as assessed and as decided in its favour by the High Court. But when the respondent fails in the objections raised to prevent the matter coming to this Court, we do not see any justification for the plea that costs should not follow the event but that the appellant should be deprived of its right to costs.