(1.)The Order of the Court was delivered by the Hon'ble The Chief Justice. This is a revision against the order of the Sales Tax Appellate Tribunal, Andhra, dismissing the application filed by the assessee under Sec. 12-A (6) of the Madras General Sales Tax Act for reviewing the order passed by the Tribunal in T. A. No. 702 of 1952. The petitioners were assessed to tax on a turnover of Rs. 28,69,151-6-10 for the year 1948-49 by the Deputy Commercial Tax Officer, Guntur. After filing an unsuccessful appeal to the Commercial Tax Officer, Guntur they preferred an appeal to the Sales Tax Appellae Tribunal. Before the Tribunal, it was, inter alia, contended that, out of the total turnover, a sum of Rs. 10,45,156-4-9 related to the commission purchase of commodities taxable at the stage of sale under the Act on behalf of principals resident outside the State. But they neither placed before the Tribunal any material in support of that contention nor advanced any arguments in support of it. The Tribunal, therefore, rejected that contention. In the petition filed under Section 12-A (6) before the Tribunal, the assessees contended that, as the accounts of the petitioners were maintained in Gujarati language and as there was none on behalf of the petitioners who could give instructions to their Advocate either in Telugu or in English when the appeal was heard, they could not place the necessary material before the Tribunal. The Tribunal dismissed the application with the following remarks:
" It is a cardinal rule of procedure that each side should be ready on the day of hearing with all the facts and materials and parties cannot ask the court to reopen a decision by tendering evidence which they ought to have done at the proper time but defaulted to do so. It is quite a different matter if any new facts come to light later and the review is sought for on that account. But where the materials ought to be in the possession of a party but not produced at the time of hearing nor was an adjournment sought for to that end, the case cannot be brought under Section 12 A (6)."
Learned Counsel for the assessees contended before us that the provisions of Section 12-A (6) are very wide and comprehensive and that he would be entitled to review in the circumstances of the present case. Section 12-A (6) (a) reads:
" 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."
Learned Counsel for the assessees contended that the word " facts " in section 12-A (6) takes in not only basic facts but also the evidence adduced in support of those facts. To put it differently, he contended that a review can be asked for on the ground that assessees for one reason or other, have not placed the relevant evidence before the Tribunal on the first occasion. The word 'facts' has not been defined under the Act. It has a wide connotation. It may comprehend within its fold any reality as distinguished from supposition or opinion. Oftentimes, it was used even to take in a mental condition of which any person is conscious. Therefore, the meaning of the word " facts " in Section 12-A (6) should necessarily be ascertained from the context in which it is used and from the purpose for which the section is enacted. The Legislature designedly did not introduce into the Act provisions analogous to Order 47 C P. C. or invoke them by reference. Order 47 C.P.C. says:
" Any person considering himself aggrieved..................and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. ''
(2.)A comparison of the said provisions with that of Section 12-A 6 (a) of the Act shows that the latter, though wider in scope in one direction, is limited in another. While under Order 47, a decree can be amended on account of some mistake apparent on the face of the record, under Section 12-A (6) a review is not permissible on that ground. While under Order 47, the discovery of new and important matter or evidence was a ground for review, under Section 12 A (6) (a) the discovery of new evidence is not a ground for review. While the exercise of due diligence is a condition precedent under Order 47, under Section 12 A (6) (a), it is not made a necessary condition. The only ground on which a review can be asked for under Sec. 12A (6)(a) is on the basis of facts, which were not before the Tribunal when it passed the order. The provisions are not in pari materia and we cannot construe one with reference to the other. The provisions of Section 12A (6) should be construed strictly, having regard to the express words used in that section.
(3.)The Legislature perhapsit is very difficult to fathom the motives that operated on its mindmight have thought that the mistakes and errors of the Tribunal can be rectified by filing a revision in the High Court and, therefore, confined the power of the Tribunal to review its order only on the basis of new facts. Unlike Order 47, the operation of section 12A (6) does not depend upon any subjective factor i. e. negligence or want of due diligence on the part of the assessee but only on the basis of the objective presentation of new facts. At the same time a reasonable interpretation should be given to the word 'facts' in the section. The Legislature, having regard to the nature of the incidence and the class of people affected by it, gave an opportunity to the assessee to place new facts before the Tribunal which, by inadvertence or even negligence, he did not place before them at the original hearing. But we cannot agree with learned Counsel that facts include also evidence necessary to establish them. There is an essential distinction between facts and the evidence to establish those facts. Otherwise we would have to attribute to the Legislature an intention to give two chances for each assessee to have his case heard by the Tribunal. He can argue his case on the material available with the off-chance of succeeding and, if he fails he can ask for a second hearing by producing other evidence, which he has negligently or designedly failed to produce at the first hearing. To avoid this obvious result, the word "facts" must be taken to mean something different from the evidence to establish those facts. They must relate to the basic facts sought to be proved to sustain a person's claim. If some such facts are omitted at the first hearing, the assessee .or the Deputy Commercial Tax Officer, as the case may be, may bring it to the notice of the Tribunal at a later stage. To illustrate, if, at the first hearing, an assessee omitted to place before the Tribunal the fact that the goods purchased by him were delivered for consumption in a different State, he may ask for a review of the order by bringing that fact and the necessary evidence to support that fact to the notice of the Tribunal. But, if that fact was pleaded even at the first instance, but not substantiated either because there was no evidence, or, the evidence adduced was not sufficient to support it, he cannot adduce further evidence to prove that fact. The additional evidence is not a new fact but it only relates to a fact that was already before the Tribunal. In T. R. G. Nos, 7, 8 and 9 of 1954, we have adopted the same interpretation and observed as follows.
" As aforesaid, the fact that the goods were booked to places outside the State and made deliverable by the Bank on payment of the price was before the Tribunal. Notwithstanding that fact, the Tribunal held that the sale took place within the State. As that fact was before the Tribunal even on the last occasion, the provision of Section 12-A (6) (a) cannot be invoked."
In Tax Revision Case No. 32 of 1954, we have followed the same rule and stated thus :
" There is an essential distinction between a fact and the evidence to establish that fact. All the facts on which the petitioners now seek to rely viz, that the goods were booked in their name both as consignor and consignee and that the railway receipts were handed over to the banks arid monies were collected through banks outside the State, were placed before the Tribunal on the first occasion. But, for one reason or other, they were not able to substantiate the facts by placing the necessary and relevant material before the Tribunal. Section 12-A (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 facts before the Tribunal at the first instance which would have made a difference in its decision."
In the instant case, the petitioners sought for review on the ground that they were not able, on the first occasion, to place their evidence before the Tribunal as the documents were in Gujarathi language.