RADHAKRISHNA AND CO Vs. COMMERCIAL TAX OFFICER CUDDAPAH

JUDGEMENT

(1.) THIS is an application for the issue of a writ of mandamus and arises in the following circumstances : For the assessment year 1957-58, the petitioner was assessed on 19th March, 1958. It was subsequently however revealed that the petitioner was guilty of some suppression of some transactions. A penalty order therefore was made on 8th May, 1958. Against that order, the petitioner went in appeal to the Assistant Commissioner. That appeal was dismissed. He carried the matter to the Tribunal again in appeal, but was not successful. Ultimately he challenged the legality of the order dated 8th May, 1958, in W.P. No. 127 of 1959. A Bench of this Court dismissed that writ petition holding that the order is not bad in law. It was held that the petitioner suppressed several taxable items with the dishonest intention of evading sales tax. This judgment was given on 22nd August, 1959. After a lapse of nearly three years, another petition now is filed challenging the validity of the order dated 8th May, 1958. The learned Government Pleader raised a preliminary objection that the previous order of this Court dated 22nd August, 1959, operates as res judicata as that order has become final between the parties. The counsel for the petitioner however argues that the point which he is now raising was not directly raised in the previous writ petition.

(2.) THAT does not in my opinion make any change. When it is now decided in Daryao v. State of U.P. (A.I.R. 1961 S.C. 1457) that principles of res judicata are applicable to applications under Article 226, it must follow that the rule of constructive res judicata would also be attracted. If the petitioner had failed to raise all the contentions which might and ought to have been raised, it would be deemed that they were raised and disposed of for the purposes of the application of the principles of res judicata. Assuming therefore that the point which the petitioner was now raising was not raised, even then the previous decision of this Court operates as res judicata.