Research › Browse › Judgment

Kerala High Court · body

1993 DIGILAW 515 (KER)

M. P. THIMMAPPA v. STATE OF KERALA.

1993-11-10

K.P.BALANARAYANA MARAR, K.S.PARIPOORNAN

body1993
JUDGMENT The petitioner in T.R.C. No. 123 of 1993 is the petitioner in this review petition. The review petition is filed under sections 114 and 151 of the Code of Civil Procedure, 1908. The tax revision case was filed under section 41 of the Kerala General Sales Tax Act, 1963, read with rule 41(1) of the Kerala General Sales Tax Rules, 1963. Before we go into the merits of the review petition, we should at once say that the review petition is incompetent. The tax revision case was filed and disposed of under section 41 of the Kerala General Sales Tax Act. Section 41(7) of the Act provides for the power to review any decision rendered in a revision filed under section 41 of the Act. Section 41(7)(a) and (b) provides as follows : "41(7)(a). The High Court may, on the application of any party to a revision under this section review any order passed by it on the basis of the discovery of new and important facts which after the exercise of due diligence were not within the knowledge of the applicant or could not be produced by him when the order was made. (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 it is preferred by a person other than an officer empowered by the Government under sub-section (1), it shall be accompanied by a fee of one hundred rupees." This review petition is not filed under section 41(7)(a) of the Act. It is not in the manner prescribed in the Act. The conditions prescribed in section 41(7)(a) of the Act are also not satisfied. On this short ground, the review petition is not maintainable. We hold so. 2. This petition is filed to review our judgment in T.R.C. No. 123 of 1993, dated September 27, 1993.(See [1994] 92 STC 563 supra). A few facts are necessary to appreciate the question now raised in the review petition. The petitioner/assessee is a dealer in paper. We are concerned with the assessment year 1987-88. We hold so. 2. This petition is filed to review our judgment in T.R.C. No. 123 of 1993, dated September 27, 1993.(See [1994] 92 STC 563 supra). A few facts are necessary to appreciate the question now raised in the review petition. The petitioner/assessee is a dealer in paper. We are concerned with the assessment year 1987-88. The question raised before the Appellate Tribunal was whether "ammonia paper" will come within entry 97 of the First Schedule to the Kerala General Sales Tax Act or will fall within the general charging section assessable at multi-point. The Sales Tax Appellate Tribunal, by its order dated October 13, 1992, referred to this point in paragraph 5 of its order and held that the lower authorities are justified in holding that "ammonia paper" does not come within the ambit of entry 97 of the First Schedule to the Kerala General Sales Tax Act. The plea of the assessee, that it will be so, was negatived. It was done on the basis of the decision of the Supreme Court in Commissioner of Sales Tax v. Macneill & Barry Ltd. [1986] 61 STC 76. This Court also concurred with the decision of the Tribunal. On that aspect of the question, there is no controversy. 3. The controversy that is raised in the review petition is that though "ammonia paper" will not come within the entry "paper" as specified in entry 97 of the First Schedule to the Act, it is a paper product since entry 97 of the First Schedule to the Kerala General Sales Tax Act specifies that paper, card boards and their products will come within that entry. In the review petition, it is contended that one of the points taken up by the assessee throughout was that ammonia paper will be a paper product. This aspect was not considered by this Court in disposing of the tax revision case. We are of the view that this question was not one germane in the tax revision case. Under section 41 of the Kerala General Sales Tax Act, this Court can revise an order passed by the Appellate Tribunal only on the ground that the Tribunal has either decided erroneously any question of law or failed to decide any question of law. Under section 41 of the Kerala General Sales Tax Act, this Court can revise an order passed by the Appellate Tribunal only on the ground that the Tribunal has either decided erroneously any question of law or failed to decide any question of law. From the order of the Tribunal dated October 13, 1992 (paragraph 5), it is evident that the only question decided was whether "ammonia paper" can be called as "paper" as specified in entry 97 of the First Schedule to the Kerala General Sales Tax Act. The Tribunal repelled the said plea. This Court also concurred with the said decision. It is not evident from the order of the Tribunal, whether the further question or alternate plea, that even if "ammonia paper" will not be covered by the label "paper", it will be a paper product was ever moored. This aspect has not been considered by the Sales Tax Appellate Tribunal. We do not know, whether it was argued before the Appellate Tribunal at all. Whatever that be, in so far as this plea having been argued is not evident from the order of the Appellate Tribunal, we cannot say that the Appellate Tribunal has decided any question of law on that aspect erroneously. Since the Appellate Tribunal has not spoken on that matter, normally, the presumption is that, that aspect was not argued or pressed before the Appellate Tribunal. We cannot say that the Appellate Tribunal failed to decide any question of law unless it is evident that the particular aspect was pressed before the Tribunal. There is no material to say so. In this view of the matter, we are of the view that the question as to whether ammonia paper will be a "paper product" was not germane or relevant in the tax revision case. It is not a matter which could be canvassed in the revision filed against the order of the Tribunal dated December 13, 1992, since it will not be covered by section 41(1) of the Kerala General Sales Tax Act. In this view, it cannot be stated that the order of this Court suffers from any infirmity. There is no scope for any review. There vas no necessity or occasion to consider whether ammonia paper will be a paper product. The review petition is unsustainable on merits also. 4. Dr. In this view, it cannot be stated that the order of this Court suffers from any infirmity. There is no scope for any review. There vas no necessity or occasion to consider whether ammonia paper will be a paper product. The review petition is unsustainable on merits also. 4. Dr. K. B. Mohammedkutty, who appeared for the petitioner, urged that this question was argued before the Appellate Tribunal, but the Tribunal did not deal with it. If that be so, the proper remedy is to file an application before the Appellate Tribunal. It is not for this Court to say that whether that matter was argued before the Tribunal or not. We leave the matter there. The review petition is dismissed. 5. Before concluding, we want to make one aspect clear. There is a slight mistake in our original judgment dated September 27, 1993 (See [1994] 92 STC 563 supra.), in the narration of facts. It is in the first page, 6th sentence, the word "not" is omitted after the word "will" and before the word "come". The sentence to the effect "The assessing authority, the first appellate authority and the Appellate Tribunal held that 'ammonia paper' will not come within the ambit of entry 97 of the First Schedule to the Act ...." should be read as such. The word "not" should be added. It is a pure clerical or typographical mistake. We direct a correction should be made by including the word "not" in the 6th sentence after the word "will" and before the word "come". It is ordered accordingly. Petition dismissed.