SUPREME COURT REPORTS [1960)

r96o We accordingly allow this appeal, set aside the

Shrimant Dattajirao judgment and decree of the High Court dated N ovem-

Buhirojirao ber 12 1952 and restore that of the learned Civil

Gho~ade Judge' dated' April 20, 1949. The appellant will be Shrimant Vijayaentitled to his_ costs throughout from the plaiutiffsinhrao -

S. K, Das j.

April 29.

respondent.

Appeal allowed.

M/S. CHANDAJI KUBAJI & CO.

THE STATE OF ANDHRA PRADESH. (S. K. DAS, J. L. K~PUR and M. HIDAYATULLAH, JJ.)

R_eview-Grounds for-Whether allowable on party's own deliberate negligence and intentional withholding of evidence-The Madras General Sales Tax Act, I939 (Mad. Act IX of Ig39), s. I2A

(6) (a).

The appellant company was a dealer in ghee and groundnut oil et~. The Deputy Commercial Tax Officer assessed it to sales tax for the year 1948-49 on a turnover of Rs. 28,69,151 and odd. Similarly for the year 1949-50 the appellant was assessed to sales tax on a turnover of Rs. 28,72,083 and odd.

The appellant challenged these assessments and its appeal before the Commercial Tax Officer having failed the two matters came up in second appeal before the Sales Tax Appellate Tribunal. In the Tribunal the appellant did not place any materials in support of its contentions and the two appeals were disposed of by the Tribunal holding that the appellant was correctly assessed to sales tax. In respect of the aforesaid orders of the Tribunal the appellant filed applications for review under s. l2A(6)(a) of the Madras General Sales Tax Act, 1939 (Mad. Act IX of 1939), taking the plea that in the first case the materials could not be placed before the Tribunal as there was none to instruct the appellant's advocate in English or Telegu, and in the second case the relevant correspondence was mixed up with other records. 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 s. 12A(6)(a) of the Act. The High Court upheld the decision of the Tribunal. On appeal by specialleave in one case and a certificate of the High Court in the other : Held, that the provision ins. l2A(6)(a) of the Madras General Sales Tax Act, 1939 (Mad. Act IX of 1939), 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, but a party was not

entitled to ask for a review when it had deliberately or intentionally withheld evidence in support of a claim made by it.

State of Andhra v.

Sri Arisetty Sriramulu, A.LR. r957 Andhra Pradesh r30, not approved.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 420of1957.

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 T.R.C.

No. 32 of 1954.

N. Rajeswara Rao and Sarrlar Bahailur, for the appellants (in both the appeals).

T. V. R. Tatachari and T. M. Sen, for the respondent (in both the appeallil).

ll960. April 29.

The Judgment of the Court was delivered by

Chandaji Kubaji 0- Co.

v; State of A ndhra Pradesh

R K. DAS, J.-These two appeals, one with special s. K. Das J. leave from this Court and the other on a certificate

grnnted by the High Court of Andhra, have been heard together and this judgment will govern them bo•jh,

'rhe faets are similar and the short question for decision is whether the appellant, Messrs. Chandaji Knbaji and Company, Guntur, was entitled to apply under s. 12A(6)(a) 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 sub-s. (4) of s. 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, a.ssessed the appellant to sales tax for the yea, r 1948 .. 49 on a turnover of Rs. 28,69,151 and odd.

Tbe appellant having unsuccessfully appealed to the Commercial Tax Officer, Guntur, made a second appeal to the Sales Tax Appellate Tribunal, hereinafter called

z960

Chandaji Kubaji 6- Co. v.

State of Andhra

Pradesh

S. K. Das J.

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 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. 10,45,156-4-9 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. 28,72,083 and odd for the year 1949-50.

The 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 despatched to places outside the State and in fact were delivered outside the State.

This plea was disallowed by the Sales Tax authorities, 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 bef0re 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 corresp9rr<fonce exists but the appellants have not chosen

,..3 S.C.R. SUPREME COURT REPOltTS 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 19, 1952. In respect of both the aforesaid orders the appellant filed applications for review under s. 12A(6)(a) of the Act. That section, in so far as it is relevant for these appeals, reads :

" 12A(6)(a)-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 tlie appeal was heard by the Tribunal, the appellant could not 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 s. 12A(6)(a) 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 s. 12B of the Act and

L960

Chandaji Kubaji& Co. v.

State of Andnra

Pradesh

S. K. Das j.

z960

Chandaji Kubf1ji ($..Co.

v. ?late of A ndhra

Pradesh

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".

S. J(. Das]. x x X "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 fact"s 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.

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 (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 s. 12A(6)(a) 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 s. 12A(6)(a) of the Act.

A Division Bench expressed the view that " facts" in the sub-section meant basic facts, that is, \ti A.LR. 1957 Andhra Pradesh 130.

3 8.C.R. SUPREME COUR'r REPOR'r8 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 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 section 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 section 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". 'fo so construe the section is to put a, premium

Chandaji Kubaji& Co. v.

State of Anahra

Pradesh

S. K. Das].

Chandaji Kubaji & Co. v.

State of A ndhra

P-radesh

S. K. Das].

x960

May3.

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 ins. 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 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 avail:; tble 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 s. 12A(6)(a) 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.

THE COTTON AGENTS LTD., BOMBAY

COMMISSIONER OF INCOME-TAX,

BOMBAY. . (S. K. DAS and M. HrnAYATULLAH, JJ.) Income-tax-Managing Agency Agreement-Proper construction of-Commission on sale proceeds of the managed company-Time of accruing.

Messrs. Shivnarayan Surajmal Nomani were the managing agents of the New Swadeshi Mills of Ahmedabad Ltd. The Nemani group and the appellant-company which is the assessee