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

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. 28,69,151 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 the Tribunal. Before the Tribunal the appellant contended inter alia that out of the total turnover a sum of Rs. 10,45,156 and odd related to commission on 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 Tribunalregards the alleged commission agency business to the tune of Rs. 10,45,156-4-9 the appellants have neither advanced arguments nor placed before us any materials in support of the contention raised in thisthe result the Tribunal dismissed the appeal on 30-5-1953.3. In Civil Appeal No. 142 of 1958 the appellant was assessed by the Deputy Commercial Tax Officer, Guntur, on a net turnover of Rs. 28,72,083 and odd for the yearThe appellant objected to the inclusion of a sum of Rs. 19,89,076 and odd on the ground that the goods relating thereto had been consigned to self and dispatched to places outside the State and in fact were delivered outside the State. This plea was disallowed by the Sales Tax authorities, and the Tribunalthe grounds of appeal it has been urged with regard to these sale transaction 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 appellants version that the property in the goods passed to the buyer only at places outside the State.;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 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 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 taxableappeal was disposed of on this finding on 19-8-1952.

Reasoning:
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.