JUDGMENT
V. Rengasamy, J. (Vice Chairman)
1. Original Petitions Nos. 104 of 1999 and 105 of 1999 are filed to set aside the order of the Appellate Tribunal (AB), Coimbatore, passed in C.T.M.P. No. 121 of 1996 for restoration of C.T.M.P. Nos. 142 of 1995 and 143 of 1995. Original Petition No. 1754 of 1998 is to set aside the order of the Appellate Tribunal passed under Section 55 of the Tamil Nadu General Sales Tax Act, 1959, dated June 15, 1998 dismissing the petition. All these matters relate to the dismissal of the appeals and also the subsequent petitions for the restoration of the appeals. For better understanding, it is proper to refer to the relevant facts.
2. Against the order of the Appellate Assistant Commissioner, the petitioner herein filed appeals in C.T.A. Nos. 551 of 1992 and 553 of 1992 before the Sales Tax Appellate Tribunal (AB), Coimbatore, along with some other appeals. These two appeals were dismissed for default on April 20, 1995. Later on, the appellant filed applications–C.T.M.P. Nos. 142 of 1995 and 143 of 1995 under Section 9(2) of the Tamil Nadu Sales Tax Appellate Tribunal Regulations for restoration of appeals ; petition also were dismissed for default on July 25, 1996 to restore these petitions, again C.T.M.P. No. 121 of 1996 was filed by the petitioner and was rejected and these are orders against which O.P. Nos. 104 of 1999 and 105 of 1999 are filed. Again, the petitioner filed petition under Section 55 of the Tamil Nadu General Sales Tax Act to rectify the orders passed in C.T.M.P. No. 121 of 1996, that also was dismissed on June 15, 1998. Therefore, as against that order O.P. No. 1754 of 1998 is filed.
3. The learned counsel–Thiru R. Senniappan contended that the petitioner’s advocate was not diligent in prosecuting the appeal and also the subsequent petitions–C.T.M.P. Nos. 142 of 1995 and 143 of 1995 before Tamil Nadu Sales Tax Appellate Tribunal, that the courts have to take liberal and sympathetic view while considering the delay or restoration of the appeals or applications, because only by restoration, the order could be passed on merit after hearing both sides, and therefore, when the applications–C.T.M.P. Nos. 142 of 1995 and 143 of 1995 were filed to restore the appeal but the same were dismissed without considering the fact that the petitioner was not responsible for not prosecuting the petitions as the advocate was in charge of the cases and therefore, the order passed in C.T.M.P. No. 121 of 1996 has to be quashed to restore C.T.M.P. Nos. 142 of 1995 and 143 of 1995 so that the main appeals C.T.A. Nos. 551 of 1992 and 553 of 1992 could be disposed of on merit. The learned counsel cited the decision of the apex Court in the case of Rafiq v. Munshilal AIR 1981 SC 1400 wherein the apex Court has observed that when a party who had engaged a counsel may be confident that his lawyer would look after his interest and such an innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission, or misdemeanour of his counsel. No doubt, sympathy should be shown when a party was not at fault for the event that occurred against him. But, in this case, the powers of the Appellate Tribunal has been considered by the authorities below and it has dismissed C.T.M.P. No. 121 of 1996 and another similar application (number is not given) but dealt in Ref. Nos. 668 of 1998 and 669 of 1998 stating that the Appellate Tribunal has no powers under Section 9(2) and 9(3) of the Tamil Nadu Sales Tax Appellate Tribunal Regulations to condone the delay and restore the petition which itself was to restore the main appeal. As mentioned above, when C.T.M.P. Nos. 142 of 1995 and 143 of 1995 were filed under Section 9(2) of the Appellate Tribunal Regulations, such petitions were certainly maintainable. But, in spite of several adjournments, the petitioner or his counsel did not turn up to prosecute these petitions and, therefore, they were dismissed by the Appellate Tribunal on July 25, 1996. The subsequent petitions–C.T.M.P. No. 121 of 1996 and another application (number not given) were filed once again under Section 9(2) and 9(3) to condone the delay of 18 days in presenting those petitions and to restore C.T.M.P. Nos. 142 of 1995 and 143 of 1995. The Appellate Tribunal has observed that Section 9(2) and 9(3) is intended to condone the delay in filing petitions for restoration of the appeal and also to file petition for restoration of the appeals but C.T.M.P. No. 121 of 1996 and another petition, were not filed to restore the main appeal, but to restore the petitions filed under Section 9(2) of the Tribunal Regulations. Section 9(2) of the Tribunal Regulations permit for the petition to readmit the appeal whereas Section 9(3) is for condonation of the delay. Section 9(2) and 9(3) deals only with the readmission of the appeal and the condonation of the delay in filing such appeal. It does not refer to any other miscellaneous petition. Therefore, the Appellate Tribunal has rightly found that no power was conferred on the Appellate Tribunal to restore a miscellaneous petition, under Section 9(2) and also for condonation of delay in filing such a petition. The learned counsel does not dispute the fact that Section 9(2) and 9(3) of the Appellate Regulations relates only to the restoration of the appeal. There is no other specific provisions for the restoration of any other miscellaneous petition. There is no inherent powers to the Appellate Tribunal for restoration of such petitions. Therefore, it cannot be said that the findings of the Appellate Tribunal that it has no powers to restore the dismissed petitions under Section 9(2) of the Tribunals Regulations, is erroneous. But the learned counsel for the petitioner, Thiru Senniappan contended, referring to the decision in [1982] 51 STC 381 (Mad.) [FB] (State of Tamil Nadu v. Arulmurugan and Company) that an appeal is a continuation of the process of assessment and the appellate authority functions as an assessing authority, to reconsider the levy of tax, and by restoring the appeals, the appellate authority has to go into the merit of the order, for which restoration of the appeal have become imperative. The decision therein proceeds that appeal no doubt is the continuation of the process of assessment and the appellate authority can enhance assessment taking advantage of the opportunity afforded by the tax-payer’s appeal, even though the appeal itself has been mooted only with view to a reduction in the assessment and the appellate authority has such exceptional jurisdiction functioning as the assessing authority itself. According to the learned counsel, as the appeal also is a continuation of the process of assessment and the appellate authority is almost the assessing authority, similar analogy is applicable even for the petitions under Section 9(2) or Section 9(3) of the Appellate Regulations to treat those petitions as appeals, because such applications were filed on account of the dismissal of the appeals, and therefore, the petitions–C.T.M.P. Nos. 142 of 1995 and 143 of 1995 also are continuation of the appeals and when such an analogy is accepted, the subsequent petitions–C.T.M.P. No. 121 of 1996 and another petition for restoration of C.T.M.P. Nos. 142 of 1995 and 143 of 1995 are certainly maintainable under Section 9(2) and 9(3) of the Appellate Regulations. This is a far-fetched argument which cannot stand the legal scrutiny for a moment. In the decision cited above, as the Revenue has the right to ask for enhancement of tax even in the appellate stage, it is stated therein that the appeal is a continuation of the process of assessment. What could be stated at the time of assessment could be raised in the appellate stage also, before the appellate authority. Therefore, it is stated that the appeal is a continuation of the process of assessment. But the petition filed to restore the appeal cannot be treated as the appeal itself, because what could be argued in the appeal, cannot be raised in the petition for restoration of the appeal. The scope of the appeal is, only to explain the reason for the absence of the party for his failure to prosecute the appeal. In that proceedings, the dispute in the main appeal cannot be raised. Therefore, the learned counsel for the petitioners is fundamentally wrong in arguing that petitions under Section 9(2) and 9(3) of the Appellate Tribunal Regulations are continuation of the main appeals. With the risk of repetition, it is to be stated that as Section 9(2) and 9(3) of the Appellate Tribunal Regulations are applicable only for the condonation or restoration of the very appeal itself ; those provisions cannot be extended to other proceedings, much less the petition for restoration of the petition (C.T.M.P. No. 121 of 1996) filed for restoration of the petitions (C.T.M.P. Nos. 142 of 1995 and 143 of 1995) which were filed for restoration of the appeals. Therefore the said decision is not applicable.
4. The learned counsel for the petitioner–Thiru Senniappan cited certain other decisions–[1993] 88 STC 17 (Mad.) (State of Tamil Nadu v. Saganla) and ) which relate to the condonation of long delay in filing the petitions. In [1993] 88 STC 17 (Mad.) (State of Tamil Nadu v. Saganla) there was a delay of 7 years and 158 days in filing the review application and the Tribunal condoned the delay. It was held that, under Section 5 of the Limitation Act which is applicable for condonation of delay, the Tribunal had powers to invoke Section 5 of the Limitation Act. In AIR 1998 SC 3222 (N. Balakrishnan v. M. Krishnamurthy) also, the trial Court condoned the delay of 883 days in filing the application, but the High Court set aside the order on the ground that proper explanation was not given for the delay. The Supreme Court, agreeing with the findings of the trial court, had observed that the High Court was wrong in obstructing the findings of the trial court when it had given reasons for the condonation of the delay. Section 5 of the Limitation Act, 1963 is applicable to any appeal or any application except the applications under Order 21 of the Civil Procedure Code and, therefore, certainly Section 5 of the Limitation Act can be invoked by the petitioner in these proceedings also. The Appellate Tribunal has dismissed C.T.M.P. No. 121 of 1996 and another application not only on the ground of delay in filing the application, but also for the reason that it has no powers to invoke Section 9(2) of the Tribunal Regulations to restore the two petitions (C.T.M.P. Nos. 142 of 1995 and 143 of 1995) filed for restoration of the main appeals. Therefore, when the Tribunal has held that it has no power to restore those petitions, even if the delay is condoned to maintain the petitions, the purpose of the petition, namely, restoration of those petitions could not be achieved. Therefore, the Tribunal has rightly dismissed the petitions.
5. It is for the very same purpose the petitioners had filed the petition under Section 55 of the Tamil Nadu General Sales Tax Act to rectify the orders passed in C.T.M.P. No. 121 of 1996 in another petition. There is no mistake in the order of the Appellate Tribunal for rectification. Only when there is mistake apparent and the face of the record Section 55 can be invoked to rectify the mistake. As the Appellate Tribunal has found that there is no provisions to restore the petitions, which themselves were filed for restoration of the main appeal, there is no question of any rectification under Section 55 of the Act. As we find that the orders passed by the Appellate Tribunal in the proceedings are perfectly correct, they cannot be interfered with in these original petitions. Therefore, all these three original petitions are dismissed.
And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned.
Issued under my hand and the seal of this Tribunal on the 9th day of March, 1999.