JUDGMENT
1. The department is the petitioner in all these five cases. The assessee is Tvl. Srinivasan and Co., 7-7A, Post Office Road, Virudhunagar. Assessee’s appeals, namely, M.T.A. Nos. 483, 539, 540, 541 and 542 relating to the assessment years 1977-78, 1978-79, 1979-80, 1980-81 and 1981-82 were filed before the Tribunal. The appeals were posted for hearing on various dates, viz., August 24, 1984, September 20, 1984, November 22, 1984, December 19, 1984, December 26, 1984, January 25, 1985, March 1, 1985, April 6, 1985, May 18, 1985 and July 17, 1985. Finally the appeals were posted for bearing on August 13, 1985. Since the authorised representative of the assessee was not ready, the appeals were dismissed for default and the enhancement petitions filed by the department were allowed. The assessee filed M.P. Nos. 304, 305, 306, 307 and 308 of 1985 before the Tribunal. The assessee’s representative contended that since he was sick he was unable to be present in the Tribunal. Therefore he sent a telegram to the Tribunal praying for adjournment. However, the Tribunal did not accept the reason given by the authorised representative for restoration of the appeals. Hence the petitions filed for restoration of the appeals were also dismissed on December 24, 1985. Thereafter, the assessee filed another set of petitions numbered as M.P. Nos. 98, 102, 101, 100 and 99 of 1986 respectively for restoration of the appeals dismissed for default. After hearing the counsel appearing on both sides, the Tribunal took the view that enhancement petitions filed by the department were allowed without hearing the assessee and, therefore, natural justice was denied to the assessee. In order to give an opportunity to the assessee to make his representation on the enhancement petitions filed by the department, the Tribunal allowed the second set of petitions filed for restoration of the appeals and accordingly, the appeals were restored and posted for hearing on merits. It is against the common order passed in the second set of petitions, the department is in revision before this Court.
2. The learned department representative, submitted as under : The Tribunal was not correct in allowing the petitions filed by the assessee for restoration of the appeals for a second time. There is no provision in the Act or in the Rules for filing the restoration applications for the second time. There is no provision in the Act to cancel the order of the assessment when it was affirmed by the Tribunal earlier and if the assessee is aggrieved over the common order passed by the Tribunal, ought to have approached the High Court by way of a revision petition. There is no provision for filing a petition for restoration of the appeals for the second time. It was therefore submitted that the order passed by the Tribunal in restoring the appeals by allowing the petitions filed for the second time is without jurisdiction. For all these reasons, it was submitted that the order passed by the Tribunal in the second set of applications filed by the assessee has to be set aside.
3. On the other hand, the learned counsel appearing for the assessee submitted as under :
The Tribunal is justified in restoring the appeals since the enhancement petitions filed by the department were allowed by the Tribunal without bearing the assessee’s representations on an earlier occasion. Since the right of natural justice was denied when the first set of restoration applications was dismissed, the Tribunal was correct in restoring the appeals by allowing the second set of restoration applications filed by the assessee.
4. By drawing the attention of this Court to the provisions contained in sections 36, 36(3) and 38 of the Tamil Nadu General Sales Tax Act, 1959, and rules 9(2), 9(3) and 30 of the Tamil Nadu General Sales Tax Rules, it was submitted that the common order passed by the Tribunal in the second set of applications filed by the assessee is in order.
5. We have heard the rival submissions. The fact remains that the appeals filed by the assessee were dismissed and enhancement petitions filed by the department were allowed ex parte. The assessee filed applications to restore the appeals dismissed for default. Those applications were also dismissed since the Tribunal is not convinced with the reason given by the counsel for the assessee. The assessee filed the second set of applications to restore the appeals originally disposed of by the Tribunal. By allowing these applications, the Tribunal restored the appeals and posted for further bearing.
6. The point for consideration in these revisions is, whether the Tribunal has got power to restore the appeals by allowing the second set of applications, filed by the assessee.
7. While considering a similar issue, this Court in the case of State of Tamil Nadu v. Thakorebhai and Brothers [1983] 52 STC 104 held as under :
“That the Tribunal had no inherent power to review its order and therefore committed an error in reviewing and setting aside its earlier order under a supposed inherent power available with it.”
8. While considering the provisions of section 36(3) of the Madras General Sales Tax Act (Act 1 of 1959), the Full Bench of this Court in Kamadhenu Metal Rolling Mills (P.) Limited v. State of Tamil Nadu [1971] 27 STC 536 held as under :
“A provision providing for dismissal for default in appearance or prosecution is undoubtedly one relating to procedure. Chenniappa Mudaliar v. Commissioner of Income-tax [1964] 53 ITR 323 supports this view. The court referred with approval to Poyser v. Minors (1881) 50 LJQB 555; 7 QBD 329, where it was held that a power given by an enactment to the court to frame rules and orders for regulating the practice of the courts, and forms of proceedings therein would cover the framing of a rule which provided that the dismissal of a case for non-appearance would have the same effect as a judgment upon the merits for the defendant. It was held in the English case that ‘the rule was one of procedure and could be validly promulgated by the authority specified in the Act’. A similar power is conferred upon the Sales Tax Appellate Tribunal by section 30(4) of the Madras General Sales Tax Act, 1959, and the regulation provided by it can provide the power for dismissal of an appeal for default, provided such regulation is consistent with the provisions of the Act. In our opinion, regulation 9 is not inconsistent with any of the provisions of the Act, but is, in particular, consistent with section 36(3), and the general frame and scheme of the Act.”
9. While considering the provisions of sections 36(3), 36(6) and 38 of the Tamil Nadu General Sales Tax Act, 1959 (Act 1 of 1959) prior to its amendment, by the Tamil Nadu Act 31 of 1972, this Court in the case of Deputy Commissioner (CT), Coimbatore v. K. S. T. Raju Chettiar [1977] 39 STC 457 at 460 held as under :
“No doubt it is true that section 36(6) does not in express terms refer to the Tribunal passing an order but that does not certainly mean that the order which the Tribunal passes on an application for review filed under section 36(6) will be an order under section 36(3). For instance, if the Tribunal dismisses an application for review and, therefore, refuses to reopen its earlier order passed under section 36(3), by no stretch of imagination it can be contended that the order passed by the Tribunal dismissing an application for review is an order under section 36(3). Apart from this, the express provision contained in section 36(8) and (9) will clearly show that the scheme of the Act itself contemplates two separate orders, one under section 36(3) and another under section 36(6). We are referring to the scheme of the Act because even before the amendment of section 38(1) by Tamil Nadu Amending Act No. 31 of 1972, sub-section (8) of section 36 itself contemplated separate orders by the Tribunal, one under section 36(3) and the other under section 36(6). Therefore, we are unable to accept the argument of the learned Additional Government Pleader that the statute does not contemplate the Tribunal passing a separate order under section 36(6) and even the order passed by the Tribunal on a review application will be an order only under section 36(3). To accept the contention of the learned Additional Government Pleader will be to ignore the express language contained not only in the amending Act, namely, Tamil Nadu Act No. 31 of 1972, but also, even before this amendment, in sub-section (8) of section 36. In view of this, we are clearly of the opinion that the statute contemplates the Tribunal passing different orders, one under sub-section (3) of section 36 when it originally disposes of the appeal and the other under sub-section (6) of section 36 when it disposes of the application for review one way or the other, and section 38(1), as it stood prior to the amendment by Tamil Nadu Act No. 31 of 1972, provided for a revision of this Court only against an order of the Tribunal passed under section 36(3) and did not provide for a revision to this Court against the order passed by the Tribunal under section 36(6). In view of the fact that the present order passed by the Tribunal under section 36(6) is admittedly prior to the Tamil Nadu Amending Act No. 31 of 1972, no revision was competent to this Court under the law as it stood.”
10. Thus it is to be seen that after the appeals were dismissed for default and the enhancement petitions were allowed ex parte, the assessee filed first set of applications for restoration of the appeals and the enhancement petitions. The restoration applications filed for the first time were also dismissed by the Tribunal. As against the common order passed in the first set of applications filed for restorations, the assessee ought to have filed a revision. Before the High Court. It is not open to the assessee to file the second set of applications for restoration of the appeals and the enhancement applications. When once the Tribunal dismissed the first set of restoration applications, thereafter, it is not open to the Tribunal to review its earlier orders passed in the appeals and the enhancement applications and in the first set of restoration applications. Considering the facts arising in this case in the light of the judicial pronouncements cited supra, we hold that the Tribunal was not correct in allowing the second set of miscellaneous petitions filed by the assessee.
11. Accordingly, the common order passed by the Tribunal in the second set of miscellaneous petitions filed by the assessee is set aside, and the common order passed by the Tribunal in the first set of miscellaneous petitions filed by the assessee stands restored.
12. In the result, the revision cases are allowed. But there will be no order as to costs.
13. Petitions allowed.