M P THIMMAPPA Vs. STATE OF KERALA

JUDGEMENT

(1.) 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. 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.) 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. .