K A BARI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) AS the above cases raise a common question of law they have been heard together. In all these cases the validity of regulation 9 (1) of the Tamil Nadu Sales Tax Appellate Tribunal Regulations, 1959, is challenged. The question for our decision in all these cases is whether the said regulation is ultra vires of section 36 (3) of the Tamil Nadu General Sales Tax Act, 1959, hereinafter referred to as the Act.

(2.) FOR the purpose of appreciating the said legal contention put forward by the petitioners, it is necessary to set out the facts in the first case, that is, T. C. No. 379 of 1969. The petitioner in that case was assessed under the Act for the year 1965-66 on a taxable turnover of Rs. 48, 581. 49 as against the reported turnover of Rs. 36, 734 by an order of assessment dated 4th November, 1966. The said assessment order was appealed against and the Appellate Assistant Commissioner by his order dated 18th january, 1967, confirmed the assessment order. The petitioner took the matter in appeal before the Sales Tax Appellate Tribunal and the appeal was posted for hearing on 24th February, 1969. On that date neither the appellate nor his counsel was present. The Tribunal therefore dismissed the appeal for default of petitioner's appearance on 25th February, 1969. The petitioner's application for restoration of the appeal was also dismissed on 23rd April, 1969. Hence the tax Case No. 379 of 1969 before this court, questioning the power of the tribunal to dismiss the appeal for default, as also the correctness of its order dated 23rd April, 1969, refusing to restore the appeal. Before dealing with the legal contention relating to the power of the Tribunal to dismiss the appeal for default, it will be appropriate to refer to the relevant statutory provisions. Section 2 (b) of the Act defines "appellate Tribunal" as one constituted under section 30 and section 30 deals with the constitution and functions of the Tribunal. Section 30 (4)enables the Tribunal with the previous sanction of the Government, to make, by notification, regulations consistent with the provisions of this Act and the rules made thereunder for regulating the procedure and the disposal of its business. In exercise of the power under section 30 (4) the Tribunal had made the Tamil Nadu Sales Tax Appellate Tribunal Regulations, 1959. Regulation 2 (ii)of the said Regulations defines "appeal" to mean a memorandum of appeal to the Appellate Tribunal under section 36 of the Act. Regulation 9 (1)enables the Tribunal to dismiss the appeal for default of appearance of the appellant, and regulation 9 (2) empowers the Tribunal to readmit the appeal if the appellant shows sufficient cause for his non-appearance. Regulations 9 (1)and 9 (2) are set out hereunder : "regulation 9 (1 ).- After the appeal has been registered, notice of the day fixed for hearing under regulation 8 shall be delivered or issued by registered post 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. Regulation 9 (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.) THOUGH there is no definition of "appeal" in the Act, regulation 2 (i) defines an appeal as the memorandum of appeal, i. . , the grounds of appeal. In Commissioner of Income-tax v. Walchand & Co. (P.)Ltd. the Supreme Court, while considering the words "pass such orders thereon as it thinks fit" in section 33 (4) of the Income-tax Act, 1922, had expressed that the said expression is intended to define the jurisdiction of the Tribunal to deal with and determine questions which arise out of the subject-matter of the appeal in the light of the evidence, and consistently with the justice of the case and that the said expression does not confer an arbitrary authority on the Tribunal. In the hierarchy of the authorities the appellate Tribunal is the final fact-finding body and its decisions on questions of fact are not liable to be questioned before the High Court. According to the Supreme Court the nature of the jurisdiction of the Tribunal predicates that the Tribunal will approach and decide the case in a judicial spirit and for that purpose it must indicate the disputed questions before it with evidence pro and con and record its reasons in support of the decision.