Decided on August 14,1970



VEERASWAMI, C. J. - (1.) THE question in these cases relates to the power of the sales Tax Appellate Tribunal to dismiss an appeal for non-prosecution, or default in appearance on the day fixed for hearing. In one of these cases, the affected party has filed a tax case under section 38 of the Madras General sales Tax Act, 1959, to revise, and in the others, writ petitions to quash the orders of the Tribunal dismissing the appeals before it, for non-prosecution. On a similar question, W. P. No. 2102 of 1969 (M/s. Selvavinayakam and Company, turmeric Merchants, Erode. . . Petitioner v. Sales Tax Appellate Tribunal, additional Bench, Coimbatore represented by its Secretary. . . . . . . . . . . Respondent) was dismissed in limine on the view that the Tribunal had the power to dismiss appeals for non-prosecution. THE court pointed out that the scheme of the Income-tax Act was entirely different, and that there was nothing in the madras General Sales Tax act, which was inconsistent with the power to dismiss for default, expressly given by the Regulations framed under the Act. A contrary view was expressed by a different Bench subsequently (Since reported as K. A. Bari v. THE State of Tamil Nadu In view of this, and to avoid embarrassment to the Sales Tax Appellate Tribunals, these cases have been heard by the Full bench.
(2.) THE Appellate Tribunal has been set up pursuant to section 30 of the Madras General Sales Tax Act, and by sub-section (4) the tribunal has been empowered to make, with the express sanction of the government and by notification, regulations consistent with the provisions of the Act and the Rules made thereunder. Such regulations are for regulating the constitution and the procedure and the disposal of the Tribunal's business. In exercise of this power, the tribunal framed the Madras Sales Tax Appellate tribunal Regulations, 1959. Regulation 9 is : " (1) After the appeal has been registered, notice of the day fixed for hearing under regulation 8 shall be delivered or issued to the party in Form C in the Schedule. THE notice shall state that if he does not appear on the day so fixed or on any other day to which the hearing may be adjourned, the appeal will be dismissed for default, or disposed of on merits ex parte. (2) When an appeal has been dismissed for default or disposed of ex parte, the appellant may apply to the Tribunal for readmission of the appeal; and where it is shown to the satisfaction of the Tribunal that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Tribunal shall readmit the appeal. (3) An application for readmission or an appeal dismissed for default or disposed of ex parte shall be made within thirty days from the date of communication of the order of the dismissal : Provided that the Tribunal shall have power to excuse the delay beyond the above period, if it is satisfied that the petitioner had sufficient cause for not making the application in time. " * This regulation clearly empowers the Tribunal to dismiss an appeal for default of appearance, or to dispose of the appeal on its merits, but ex parte. Where sufficient cause is shown for non-appearance the Tribunal may readmit the appeal. But it is said that the regulation is inconsistent with the provisions of sub-section (3) of section 36, and it is, therefore, invalid. This view will be correct if the sub-section enjoins disposal of an appeal only on its merits. In our opinion, there is nothing in the language of sub-section (3) of section 36 which renders regulation 9 inconsistent with it. The words "in disposing of an appeal" in the sub-section are not a term of art, and should bear the ordinary meaning, viz. , in getting rid of an appeal, unless the context compels a different sense. We may take an appeal to be the memorandum containing grounds of appeal. But that does not necessarily imply that such memorandum can only be dismissed, or allowed, on its merits. Two classes of orders are contemplated by the sub-section which may be the subject of appeals, (1) an order of assessment, and (2) any other order. In the case of the former, the disposal may take any one of the three forms indicated by sub-clauses (i) to (iii) of clause (a) of sub-section (3 ). The first two do contemplate the merits of the appeal in its disposal; but the third, in our view, need not be so, for, the Tribunal, in respect of it, is empowered to "pass such other orders as it may think fit". These words will have no content if they are construed to limit them to orders on merits. The types of orders on the appeal on its merits appear to be exhausted by the variety mentioned in sub-clauses (i) and (ii) of clause (a) of sub-section (3 ). "such other orders" in sub-clause (iii) can but be those other than the orders on merits within the purview of sub-clauses (i) and (ii ). In fact, in answer to a question, counsel for the assessee could not point out what kind of orders on merits are left out by sub-clauses (i) and (ii) which could be made under sub-clause (iii ). We ourselves have not been able to see what other orders on merits of the appeal can be brought under the last sub-clause on the ground that they will be outside the purview of the first two sub-clauses. The phraseology used by sub-clause (iii) is so wide, as it seems to us, to include orders which are not on merits of the appeal, as for instance, dismissal for default. It is significant in this connection to note that sub-clause (iii)does not use the phrase "thereon". The conferment of the appellate powers on the Tribunal by section 12-A (4) of the Madras General Sales Tax Act, 1939, was in different words : "the Appellate Tribunal shall, after giving both parties to the appeal a reasonable opportunity of being heard, pass such order thereon as it thinks fit. " * Those are the identical words employed by section 33 (4)of the Indian Income-tax Act, 1922, in conferring power upon the Income-tax appellate Tribunal. Construing those words in the light of the scheme of the income-tax Act, particularly section 66 relating to the reference of a question of law arising out of the order of the Tribunal, to the High Court, commissioner of Income-tax v. S. Chenniappa Mudaliar held that the disposal in exercise of the powers conferred by those words by the Tribunal could only be on the merits of the appeal. The Supreme Court said : "the scheme of the provisions of the Income-tax Act, 1922, relating to the Appellate Tribunal apparently is that it has to dispose of an appeal by making such orders as it thinks fit on the merits. It follows from the language of section 33 (4) and in particular the use of the word'thereon' that the Tribunal has to go into the correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant. This can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear. . . . . The provisions contained in section 66 about making a reference on questions of all to the high Court will be rendered nugatory if any such power is attributed to the appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default, without making any order thereon in accordance with section 33 (4 ). The position becomes quite simple when it is remembered that the assessee or the Commissioner of Income-tax, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of section 66. So far as the questions of fact are concerned the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under section 33 (4 ). It follows from all this that the appellate Tribunal is bound to give a proper decision on questions of fact as well as law which can only be done if the appeal is disposed of on the merits and not dismissed owing to the absence of the appellant. " * But the scheme of the Madras General Sales Tax Act, 1959, is entirely different. It contains no provisions for reference to the High court on the question of law arising from the order of the Tribunal. The Act provides for an appeal from the orders of the assessing authority, and a further appeal on facts, to the Tribunal, whose decision on facts will be final. But anyone who is aggrieved, whether the assessee or the State, against the orders of the Tribunal, is given a right of revision to the High Court, on a question of law. The jurisdiction of the High Court in revision is not merely advisory. It has the power to decide such a question finally which should be given effect to by the department. We are unable to agree that the right of revision is rendered nugatory, if the Tribunal dismissed an appeal for default. As a matter of fact, one of the assessees before us has filed a revision from the order dismissing his appeal. It is open to the assessee who feels aggrieved by such an order, to challenge its validity by way of revision, for, whether in a given set of circumstances, the Tribunal was justified in dismissing the appeal for default would, in our view, be a question of law, just as the question whether there is sufficient cause on the given facts, for failure to appear, and, therefore, to set aside the order dismissing the appeal for default. In the circumstances, therefore, we do not think that we can apply properly the construction placed by the Supreme Court of section 33 (4) in the light of the scheme of the Income-tax Act, to the interpretation of the scope of section 36 (3) of the Madras General Sales Tax Act, 1959. Neither the language of that section nor the scheme of that Act are in pari materia or analogous to that of section 33 (4) of the Income-tax Act, 1922. Further, regulation 9 framed under the Madras General Sales Tax Act itself confers power upon the Tribunal to set aside its orders dismissing any appeal for default, if sufficient cause is shown therefor. It may be that clause (b) of sub-section (3)of section 36 of the Madras General Sales Tax Act does not appear to confer a power specifying the types of orders the Tribunal can pass in respect of the appeals involving the order other than the order of assessment. Under that provision, the Tribunal will be entitled to confirm, cancel or vary the order. But once we take the view as we do, that the words'in disposing of an appeal "in sub-section (3) would take in also a power to dismiss an appeal for default, such a power would extend also to an appeal in respect of an order other than an order of assessment. No doubt the assessee who filed an appeal should be given a reasonable opportunity of being heard. But this does not mean that, if notwithstanding the opportunity given to him, he defaults to prosecute the appeal, it follows automatically from the requirement to give a reasonable opportunity of being heard, that the Tribunal can only deal with the appeal and make an order thereon on its merits. There is no warrant in the language for placing such a construction. Section 34 of the madras General Sales Tax Act, 1959, provides for special powers of the Board of revenue on its own motion to call for and examine an order passed or proceeding recorded by the appropriate authority in specified cases and to pass such order thereon as it thinks fit, and by sub-section (2) the Boards'jurisdiction under the section is barred if the time for appeal to the Tribunal does not become barred or the order has been made the subject of an appeal to the Appellate Tribunal or of a revision before the High Court. By making reference to this section, it is contended that this provision would indicate that the Tribunal should dispose of the appeal only on the merits, and not otherwise. We fail to see how this follows from section 34. Where the Tribunal passed an order on the merits of an appeal, it bars the Board's jurisdiction. Where, however, the Tribunal passed an order dismissing an appeal for default of appearance, can it be regarded as an order which is the subject-matter of a revision within the meaning of section 34 (2) (b ). If the answer is in the affirmative, the consequence prescribed by that provision will follow. But that does not anyway, in our opinion, affect the construction of sub-section (3) of section 36. A provision providing for dismissal for default in appearance or prosecution is undoubtedly one relating to procedure. Chenniappa Mudaliar v. Commissioner of income-tax supports this view. The court referred with approval to Poyser v. Minors ( 1881 (50) LJQB 555; 7 Q. B. D. 329), where it was held that a power given by an enactment to the court to frame rules and orders for regulating the practice of the courts, and forms of proceedings therein would cover the framing of a rule which provided that the dismissal of a case for non-appearance would have the same effect as a judgment upon the merits for the defendant. It was held in the English case that" * the rule was one of procedure and could be validly promulgated by the authority specified in the Act. " A similar power is conferred upon the Sales Tax Appellate Tribunal by section 30 (4) of the Madras general Sales Tax Act, 1959, and the regulation provided by it can provide the power for dismissal of an appeal for default, provided such regulation is consistent with the provisions of the Act. In our opinion, regulation 9 is not inconsistent with any of the provisions of the Act, but is, in particular, consistent with section 36 (3), and the general frame and scheme of the Act. Our attention was invited to Oversea Mica Exports v. Secretary, Sales Tax Appellate Tribunal where a contrary view appears to have been taken. In that case it was considered evidently that to "pass such other order" in sub-clause (iii) in section 36 (3), meant to pass such further orders. The decision also proceeded on the basis that the sub-clause should be read ejusdem generis with the other two clauses. With respect, we are unable to concur for the reasons we have already recorded. In the U. P. Sales tax Act, which was dealt with in Hindustan Metal Works v. Sales Tax Officer there was no clause like sub-clause (iii) of section 36 (3) of the Madras Act. Abdul Subham Saheb & Sons v. Sales Tax Appellate Tribunal related to the mysore Sales Tax Act, which conferred appellate powers on the Tribunal exactly in the same terms as section 12-A (4) of the Madras General Sales Tax Act, 1939, which was in pari materia with section 33 (4) of the Indian Income-tax Act, 1922. In our view, therefore, regulation 9 framed by the Sales Tax Appellate tribunal, is consistent with the provisions of the Madras General Sales Tax act, 1959, and is valid. But in the circumstances, we are inclined to think that the Appellate Tribunal should not have dismissed the relative appeals for default. In one case, the appeal was part-heard, and there was adequate reason for asking for an adjournment, which should have been granted. In the other cases too, the Tribunal should have set aside the ex parte dismissal. The power under regulation 9 should, in our view, be carefully and sparingly used, and with a view to advance the cause of justice. We accordingly set aside the orders of the Tribunal, allow the tax case and writ petitions, and direct the tribunal to dispose of the appeals afresh. No costs. ;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.