ARTS AND CINI HOUSE Vs. STATE OF KERALA

JUDGEMENT

(1.) These revision petitions by the same assessee are directed against the order of the Appellate Tribunal, Agricultural Income Tax and Sales Tax, Additional Bench, Palghat, in Review Applications Nos. 6 and 7 of 1990 in T.A. Nos. 758 and 759 of 1988. Revision petitioner is an assessee under the Kerala General Sales Tax Act. The assessments for the years 1985-86 and 1986-87 were challenged before the Appellate Tribunal in T.A. Nos.758 and 759 of 1988 which were disposed of by the Tribunal by a common judgment on December 27, 1988. The assessee moved the Tribunal by two review applications, viz., 6 and 7 of 1990 for review of the order passed by the Tribunal in the appeals T.A. Nos. 758 and 759 of 1988. The Chairman of the Tribunal decided the matter in favour of the assessee on merit. The Departmental Member decided the matter against the assessee. While doing so, he held the review applications to be not maintainable. The Chairman did not express any opinion on the maintainability of the review applications. In view of the difference between the Chairman and the Departmental Member the cases were referred to a third Member-Member (Accounts) under S.39(4) read with S.4(3)(i) of the Kerala General Sales Tax Act. The third member concurred with the Departmental Member on merits but did not decide the question as to the maintainability of the application. The result is that on merits the Departmental Member and the Accounts Member decided against the assessee revision petitioner and the Chairman in favour of the assessee. Regarding the maintainability of the review petitions the Departmental Member alone expressed his opinion. He held the petition to be not maintainable. The Chairman did not enter a finding on this aspect and the Accounts Member also declined to express any opinion on that aspect. In these circumstances, this Court by order dated February 24, 1993 directed the Appellate Tribunal, Additional Bench, Palghat, to enter definite findings regarding the maintainability of the review applications in order to enable this Court to pronounce a decision in the revisions satisfactorily. This was necessitated in view of the absence of an express finding by the Chairman and the total absence of a finding itself by the Member (Accounts).

(2.) In pursuance to the directions of this Court the Chairman and the Member (Accounts) considered the matter. By order dated May 18, 1993 the Member (Accounts) agreed with the findings entered into by the Member (Departmental) regarding the maintainability of the review application. In other words, the Member (Accounts) held the review application to be not maintainable in law on the basis of the reasoning given by the Departmental Member. The Chairman is of the view that the application for review is maintainable.

(3.) After receipt of the findings of the Chairman and the Member-(Accounts), revision petitioner sought amendment of the revision petition by incorporating an additional question of law in paragraph (6) of the revision petition. That question is to the following effect: