Thungabhadra Industries Ltd. Vs. The
Government of Andhra Pradesh [1963] INSC 209 (22 October 1963)
22/10/1963 AYYANGAR, N. RAJAGOPALA AYYANGAR,
N. RAJAGOPALA SARKAR, A.K.
GUPTA, K.C. DAS
CITATION: 1964 AIR 1372 1964 SCR (5) 174
CITATOR INFO:
R 1983 SC1125 (6) D 1989 SC1654 (16)
ACT:
Civil Procedure Code, 1908 (5 of 1908), 0.
47, r.
1--Petition for certificate of fitness under
Constitution Act, 131(1)(c)--Order that the cost does not involve any
substantial question of law--Whether an "error apparent on the face of the
record".
Practice and Procedure--Notice to respondent
before granting special leave--Whether objection to the maintainability of
appeal permitted after grant of special leave--Supreme Court Rules, 1950, 0.
XIX, r. 4.
HEADNOTE:
In respect of the assessment year 1949-50,
the appellant while submitting his return disclosing his turnover of the sale
of oil, included therein the value of the hydrogenated oil that he sold and
claimed a deduction under r. 18 of the Turnover and Assessment Rules in respect
of the value of the groundnuts which had been utilised for conversion into
hydrogenated oil on which he had paid tax at the point of their purchase. The
sales tax authorities rejected the claim on the ground that hydrogenated
groundnut oil was not groundnut oil within that rule. This view was upheld by
the High Court on February 11, 1955, in the Tax Revision Case No. 120 of 1953
filed by the appellant, but, on application, the High Court granted a
certificate of fitness under Art.
133(1) of the Constitution of India on the
ground that substantial questions of law arose for decision in the case.
For the assessment years 1950-51, 1951-52 and
1952-53, the same question as to whether hydrogenated groundnut oil was raised
and decided against the appellant by the sales tax authorities and the High
Court. The appellant then applied for a certificate of fitness under Art.
133(1) of the Constitution, but the High Court dismissed the petition on
September 4, 1959, stating: "The judgment sought to 175 be appealed
against is one of affirmance. We do not think that it involves any substantial
question of law .................. nor do we regard this as a fit case for
appeal to the Supreme Court." On November 23, 1959, applications for
review were filed under 0. 47, r. 1, of the Code of Civil Procedure but they
were dismissed. The appellant then applied for special leave under Art. 136 of
the Constitution against the orders dismissing the applications for review and
leave was granted after notice to the respondent. When the appeal came on for
hearing in the Supreme Court, the respondent raised a preliminary objection
that the special leave granted to the appellant should be revoked. The grounds
for revoking the special leave were not urged by the respondent at the time of
the hearing of the applications under Art. 136, nor were they set out in the
statement of case filed by the respondent under O.XVIII of the Supreme Court
Rules, 1950.
Held (i) that where notice is given to the
respondent before the hearing of the application for grant of special leave, no
objection to the maintainability of the appeal or to the granting of special
leave would be permitted to be urged at any stage after the grant of it, except
possibly where the ground urged happens to arise subsequent to the grant of
leave or where it could not be ascertained by the respondent at that date
notwithstanding the exercise of due care.
(ii) that the statement in the order dated
September 4, 1959, that the case did not involve any substantial question of
law, was an "error apparent on the face of the record" within the
meaning of 0. 47, r. 1, of the Code of Civil Procedure inasmuch as this was a
case where without any elaborate argument one could point to the error and say
that here was a substantial point of law which stared in the face.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 781- 783 of 1962.
Appeals by special leave from the judgment
and order January 6, 1961, of the Andhra Pradesh High Court in Civil
Miscellaneous Petition Nos. 4672 to 4674 of 1960.
A. V. Viswanatha Sastri, M.S.K. Sastri and
M.S.
Narasimhan, for the appellant (in all the
appeals).
Ranganadham Chetty and R.N. Sachthey, for the
respondent (in all the appeals).
October 22, 1963. The Judgment of the Court
was delivered by AYYANGAR J.--The points raised in these three appeals which
come before us by virtue of special leave under Art.
136 of the Constitution are somewhat 176 out
of the ordinary and raise for consideration whether the common order passed by
the High Court of Andhra Pradesh rejecting applications to review an earlier
order by that court, is correct on the facts which we shall state presently.
The appellant--M/s Thungabhadra Industries
Ltd. are' manufacturers of groundnut oil, part of which they convert for sale
into hydrogenated oil while the rest is sold as ordinary oil. Under the Madras
General Sales Tax Act, hereinafter referred to as the Act, which has
application to the State of Andhra Pradesh, while in regard to groundnuts the
tax is levied at the point of purchase, groundnut oil is taxed at the point of
sale. The result of this feature naturally is that when a person purchases
groundnut and converts the same into oil and sells the oil extracted he has to
pay tax at both the points. Rules have been framed in order to alleviate what
might be considered a hardship by reason of this double levy. Rule 5(k) of the
Turnover & Assessment Rules provides:
"5. (k) in the case of a registered
manufacturer of groundnut oil and cake, the amount which he is entitled to
deduct from his gross turnover under rule 18 subject to the conditions
specified in that rule".
and Rule 18 referred to reads:
"18. (1) Any dealer who manufactures
groundnut oil and cake from groundnut and/or kernel purchased by him may, on
application to the assessing authority having jurisdiction over the area in
which he carries on his business, be registered as a manufacturer of ground nut
oil and cake.
(2) Every such registered manufacturer of
groundnut oil will be entitled to a deduction under clause (k) of sub-rule (1)
of rule 5 equal to the value of the groundnut and/or kernel, purchased by him
and converted into 'oil and cake if he has paid the tax to the State on such
purchases:
177 Provided that the amount for which the
oil is sold is included in his net turnover:
Provided further that the amount of the turnover
in respect of which deduction is allowed shall not exceed the amount of the
turnover attributable to the groundnut and/or kernel used in the manufacture of
oil and included in the net turnover." The appellant is admittedly a
manufacturer who is registered for the purposes of that rule.
In respect of the year 1949-50 the appellant
while submitting his return disclosing his turnover of the sale of oil,
included therein the value of the hydrogenated oil that he sold and claimed a
deduction under the rule in respect of the value of the groundnuts which had
been utilised for conversion into hydrogenated oil on which he had paid tax at
the point of their purchase. This claim was negatived by the Sales Tax
authorities on the ground that "hydrogenated groundnut oil" was not
"groundnut oil" within r. 18(2).
Having failed before the departmental
authorities in getting its claim to deduction allowed, the appellant approached
the High Court with a Tax Revision Case numbered 120 of 1953 on its file but
the High Court, by its judgment dated February 11, 1955, upheld the view of the
department. An application was thereafter made to the High Court to grant a
certificate of fitness under Art. 133(1) on the ground that substantial
questions of law as to the interpretation of the General Sales Tax Act. and the
Rules made there under, as well as of certain other enactments which were
relied upon in support of their claim by the appellants, arose for decision in
the case. The learned Judges by their order dated February 21, 1956 granted the
certificate. In view of the points arising in this appeal we consider it would
be convenient to set out the text of this order:
"This petition raises a question of general
importance namely whether hydrogenated groundnut oil popularly known as
Vanaspathi is ground- 1 SCI/64--12 178 nut oil so as to enable the assessee to
claim exemption under Rules 18(2) and 5(1) (g) of the Turnover and Assessment
Rules framed by the Government in exercise of the powers conferred by Section 3
and sub rules 4 and 5 of the Madras General Sales Tax Act, 1939.
The answer to the question arising in this
matter turns upon whether the chief characteristics of groundnut oil remain the
same in spite of the chemical processes it undergoes, It also involves the
interpretation of the notifications issued by the Government of India under the
Essential Supplies (Temporary Powers) Act and certain provisions of the
Vegetable Oils Products Control Order. In these circumstances we think it a fit
case for appeal to the Supreme Court. Leave is therefore granted."
Thereafter the appeal was entertained in this Court and numbered as Civil
Appeal 498 of 1958, was finally disposed of on October 18, 1960 and is now
reported as M/s Thungabhadra Industries Ltd. v. The Commercial lax Officer,
Kumool(1).
Meanwhile in regard to the assessment of the
three succeeding years---1950-51, 1951-52 and 1952-53, the same question as to
whether "hydrogenated groundnut oil" was "groundnut oil"
entitled to the deduction of the purchase turnover under r. 18(2) of the
Turnover and Assessment Rules was raised and was decided against the appellant
by the Sates Tax Officer. This order was taken up in appeal to the Deputy
Commissioner of Commercial Taxes by the appellant and as apparently the
identical question was pending in the High Court in regard to the year 1949-50,
the appellate authority awaited the decision of the High Court and when T.R.C.
120 of 1953 was decided against the appellant on February 11, 1955, disposed of
the appeal against the appellant by its order dated April 5, 1955. Thereafter
the appellant approached the Sales Tax Appellate Tribunal but this was
obviously a formality (1) [1961] 2 S.C.R. 14.
179 because the Tribunal were bound by the
judgment of the High Court and the appeals were dismissed by order dated
October 20, 1955. Against the orders of the Sales Tax Appellate Tribunal the
appellant preferred three Tax Revision Cases- T.R.C. 75,76 and 77 of 1956 in
regard to the three assessment years. The learned Judges of the High Court
dismissed the three Revision Cases on October 7, 1958 following their earlier
decision in T.R.C. 120 of 1953 in regard to the assessment for the year
1949-50. At this date, it would be noticed, the correctness of the decision of
the High Court in T.R.C. 120 of 1953 was pending adjudication in this Court by
virtue of the Certificate of fitness granted by the High Court under Art.
133(1).
Desiring to file an appeal to this Court
against the judgment of the High Court in these three Tax Revision Cases as
well, the appellant filed, on February 16, 1959, three miscellaneous petitions
under Art. 133(1) of the Constitution praying for a certificate of fitness that
the case involved substantial questions of law as to the interpretation of the
Sales Tax Act and the Rules made there under etc. The learned Judges, however,
by their order dated September 4. 1959 dismissed the petition stating:
"The judgment sought to be appealed
against is one of affirmance. We do not think that it involves any substantial
question of law as to the interpretation of the Constitution; nor do we regard
this as a fit case for appeal to the Supreme Court." The question that
arises for consideration in these appeals is primarily whether this order dated
September 4, 1959, is vitiated by error apparent on the face of the record. How
that matter becomes relevant is because the appellant filed three applications
for review of this order under O. XLVII r. 1 of the Civil Procedure Code
specifying this as the ground for relief. These applications for review were
filed on November 23, 1959, and apparently notice was issued to the
respondent-State Government and the petition for review came on for hearing on
January 6, 1961.
180 On that date the learned Judges dismissed
the said applications and assigned the following as the reasons for their
order:
"The only ground argued in support of
these review petitions is that leave to appeal to the Supreme Court was granted
in similar circumstances in regard to previous year and there was no reason why
leave should have been refused in these cases. We do not think that would
furnish a sufficient ground for reviewing the order dismissing the petitions
for leave to file an appeal t 0 the Supreme Court. That apart, the Supreme
Court was moved under Article 136 of the Constitution for special leave and
that was dismissed may be on the ground that it was not flied in time. In the
circumstances, we think that our order dated 4.9.1959 dismissing S.C.C.M.Ps No.
4823, 4825 and 4827 of 1959 cannot be
reviewed." The appellants thereupon made applications for special leave
from this Court to challenge the correctness of this last order and the leave
having been granted after notice to the respondent, the appeals are now before
us.
Before dealing with the arguments addressed
to us on behalf of the appellant it is necessary to advert to an objection
raised by learned Counsel for the respondent urging that the special leave
granted to the appellant should be revoked. We declined to permit the
respondent to urge any such argument in this case primarily for two reasons. In
the first place, the special leave was granted after notice to the respondent
and therefore after hearing the respondent as to any objection to the
maintainability of the appeal or to the granting of special leave. In the
circumstances, any ground in relation to these matters should have been urged
at that stage and except possibly in some extraordinary cases where the ground
urged happens to arise subsequent to the grant of the special leave or where it
could not be ascertained by the respondent at that date notwithstanding, the
exercise of due care; except in such 181 circumstances this Court will not
permit the respondent to urge any argument regarding the correctness of the
order of the Court granting special leave. Indeed, the very object of issuing
notice to the respondent before the grant of leave is to ensure that the latter
is afforded an opportunity to bring to the notice of the Court any grounds upon
which leave should be refused and the purpose of the rule would be frustrated
if the respondent were permitted to urge at a later stage--at the stage of the
hearing of the appeal and long after the appellant has incurred all the
costs--that the leave granted after notice to him should be revoked on a ground
which was available to him when the application for special leave was heard.
This apart, even the statement of the case filed on behalf of the respondent
does not disclose any ground upon which the leave granted should be revoked: no,
of course, does it make any prayer seeking such relief. One of the objects
which the statement of the case is designed to achieve is manifestly that no
party shall be taken by surprise at the hearing and this is ensured by the
provision in O. XIX r. 4 of the Supreme Court Rules reading:
"No party shall, without the leave of
the Court, rely at the hearing on any grounds not specified in the Statement of
the Case filed by him." Nor, of course, was there any contention that the
ground that he proposed to submit came into existence after the filing of the
statement of case. It was in these circumstances that we declined to permit the
respondent to develop an argument to persuade us to hold that the leave granted
by this Court should be revoked, though we might add that the matter mentioned
by learned Counsel for the respondent in this respect would not, even if urged
at the hearing of the special leave petition, have materially assisted him in
resisting the grant of special leave. The point he desired to urge was that in
the petition for special leave the appellant had averred that the decision of
this Court reversing the judgment of the High Court in T.R.C. 120 of 1953 had
been 182 brought to the notice of the High Court, but that this statement must
be erroneous or untrue for two reasons: (1) This is not referred to in the
order now under appeal, and (2) the decision of this Court was not reported in
any of the law reports--official or unofficial -- till long after January 1961
when the petition for review was heard. It is manifest that neither of the two
circumstances would by itself prove the untruth of the averment in the special
leave petition. The learned Judges might well have thought that the decision
had no material bearing on the only point that arose for consideration before
them, viz., whether their order of September 1959 was or was not vitiated by
error of the sort which brought it within O. XLVII. r. 1 of Civil Procedure
Code. It is obvious that so viewed, it would not have any relevance. As regards
the other point, the appellant did not have need to wait for a report of the
case in the law reports but might very well have produced a copy of the
judgment of this Court--and being a party to the proceeding here it is
improbable that it had not a copy, so, that its statement that it drew the
attention of the Court to the decision is not proved to be false by the
decision not being reported till long after January, 1961. The oral application
for revoking the leave granted is therefore rejected as entirely devoid of
substance.
We shall next proceed to deal with the merits
of the appeals. Before doing so however, it is necessary to advert to a
circumstance which the learned Judges considered a proper reason for rejecting
the petition for review. This arises out of the second of the grounds assigned
by the learned Judges in their order dated January 6, 1961, refusing to grant
the review. This may be quoted in their own words:
"That apart, the Supreme Court was moved
under Art. 136 of the Constitution for special leave and that was dismissed,
may be on the ground that it was not filed in time." 183 The facts in
relation to this matter might now be stated. As already seen, the applications
for reviewing the order dated September 4, 1959, refusing the certificates were
filed on November 23, 1959. During the pendency of those review applications
the appellant filed, on November 30, 1959, petitions seeking special leave of
this Court under Art. 136 of the Constitution but those petitions were filed
beyond the period of limitation prescribed by the Rules. An application was
therefore filed along with the special leave petitions seeking condonation of
delay in the filing of the petitions. The petitions and the applications for
condonation of delay came on together for hearing and this Court refused to
condone the delay, so that the petitions for special leave never legally came
on the file of this Court.
O. XLVII r. 1(1) of the Civil Procedure Code
permits an application for review being filed "from a decree or order from
which an appeal is allowed but from which no appeal has been preferred."
In the present case, it would be seen, on the date when the application for
review was filed the appellant had not filed an appeal to this Court and
therefore the terms of O. XLVII r. 1(1) did not stand in the way of the
petition for review being entertained. Learned Counsel for the respondent did
not contest this position.
Nor could we read the judgment of the High
Court as rejecting the petition for review on that ground. The crucial date for
determining whether or not the 'terms of O. XLVII. r.1 (1) are satisfied is the
date when the application for review is filed. If on that date no appeal has
been filed it is competent for the Court hearing the petition for review to
dispose of the application on the merits notwithstanding the pendency of the
appeal, subject only to this, that if before the application for review is
finally decided the appeal itself has been disposed of, the jurisdiction of the
Court hearing the review petition would come to an end.
The next question is as regards the effect of
the refusal of this court to condone the delay in filing the petition for
special leave. Here again, it 184 was not contended that the refusal of this
Court to entertain the petition for special leave on the grounds just now
stated was a bar to the jurisdiction or powers of the Court hearing the review
petition. This position was not contested by the learned Advocate for the
respondent either. In these circumstances, we are unable to agree with the
learned Judges of the High Court that the refusal by this Court to condone the
delay in filing the petition for special leave was a circumstance which could
either bar the jurisdiction of the High Court to decide the petition for review
or even could be a relevant matter to be taken into account in deciding it. If
therefore their original order dated September 4, 1959, was vitiated by an
error apparent on the face of the record, the failure of the special leave
petition to be entertained in this Court in the circumstances in which it
occurred, could not be any ground either of itself or taken along with others
to reject the application for review.
We consider it would be convenient to
consider the first part of the order of the High Court now under appeal after
examining the principal question whether the order of September, 1959,
rejecting the appellant's petition for a certificate is vitiated by error
apparent on the record. If one analysed that order only one reason was given
for the rejection of the certificate of fitness. No doubt, in the first
sentence of their order they stated that the judgment was one of affirmance,
but that was merely preliminary to what followed where they recorded that the
certificate was refused for the reason that the case did not involve any
substantial question of law regarding the interpretation of the Constitution.
The preliminary statement that their judgment was one of affirmance would,
however, seem to show that what the learned Judges had in mind were the terms
of Art. 133 of the Constitution where alone--as distinct from Art. 132--there
is reference to a judgment of affirmance, though per incuriam they reproduced
the terms of Art.
132(1). As it was the case of no 185 party
that any question of interpretation of the Constitution was involved, the
reference to "the substantial question of law relating to the
interpretation of the Constitution" must obviously have been a mistake for
a substantial question of law arising in the appeal. Though learned Counsel for
the appellant stressed this ground in the order of September, 1959 as itself
disclosing an error apparent on the face of the record or was at least,
,indicative that the learned Judges did not apply their minds to the
consideration of the question arising in the application for a certificate of
fitness, we shall proceed on the basis that this was merely a clerical error in
their order and that the learned Judges had really in mind the terms of Art.
133(1) which had been invoked by the appellants in their application for the
certificate. On the basis that the words in the order of September, 1959
referring to a substantial question of law as to the interpretation of the
Constitution were really meant to say that no substantial question of law was
involved in the appeal sought to be filed in this Court how does the matter
stand ? There was practically no question of fact that fell to be decided in
T.R.Cs. 75 to 77 of 1956 and the sole question related to the claim to deduct
the value of the groundnut on which purchase tax had been paid and which had
been converted into hydrogenated oil which had been sold and which had been
included in the appellant's turnover. In fact, these T.R.Cs. were decided by
the High Court not independently on a consideration of any particular facts
which arose in them, but by following the decision of the High Court in T.R.C.
120 of 1953 which had accepted the construction which the departmental
authorities had placed on r. 18(2) of the Turnover & Assessment Rules. The
substantial points of law which were claimed to arise in the appeal had been
set out in extension the petition seeking the certificate and, in fact, they
were practically a reproduction of the contents of the earlier petition seeking
a certificate against the decision in T.R.C. 120 of 1953.
The learned Judges--and the learned C.J. was
a party 186 to the earlier decision and to the grant of the certificate of
fitness on that occasion--considered these points and had stated as their
opinion that substantial questions of law of general importance were involved
in the case and they had given expression to these views in a judgment which we
have reproduced earlier.
What, however, we are now concerned with is
whether the statement in the order of September 1959 that the case did not
involve any substantial question of law is an "error apparent on the face
of the record". The fact that on the earlier occasion the court held on an
'identical state of facts that a substantial question of law arose would not
per se be conclusive, for the earlier order itself might be erroneous.
Similarly, even if the statement was wrong, it would not follow that it was an
"error apparent on the face of the record", for there is a
distinction which is real, though it might not always be capable of exposition,
between a mere erroneous decision and a decision which could be characterised
as vitiated by "error apparent". A review is by no means an appeal in
disguise whereby an erroneous decision is reheard and corrected. but lies only
for patent error. We do not consider that this furnishes a suitable occasion
for dealing with this difference exhaustively or in any great detail, but it
would suffice for us to say that where without any elaborate argument one could
point to the error and say here is a substantial point of law which stares one
in the face, and there could reasonably be no two opinions entertained about
it, a clear case of error apparent on the face of the record would be made out.
No questions of fact were involved in the decision of the High Court in T.R.Cs.
75 to 77 of 1956. The entire controversy turned on the proper interpretation of
r. 18(1) of the turnover & Assessment Rules and the other pieces of
legislation which are referred to by the High Court in its order of February
1956 nor could it be doubted or disputed that these were substantial questions
of law. In the circumstances therefore, the submission of the appellant that
the 187 order of September 1959 was vitiated by "error apparent'' of the
kind envisaged by O. XLVII r. 1, Civil Procedure Code when it stated that
"no substantial question of law arose" appears to us to be clearly
well-founded. Indeed, learned Counsel for the respondent did not seek to argue
that the earlier order of September 1959 was not vitiated by such error.
He, however, submitted that this Court should
have regard not to whether the earlier order was so vitiated or not but to the
grounds which were urged by the appellant at the hearing of the application for
review and that if at that stage the point in the form in which we have just
now expressed was not urged, this Court would not interfere with the order
rejecting the application for review. He pointed out that at the stage of the
arguments on the application for review the only ground which was urged before
the Court, as shown by the judgment of the Court, was that the order of
September, 1959 was erroneous for the reason that a certificate had been
granted on a previous occasion. We have extracted the text of this order of
January, 1961 in which this argument is noticed and it is stated that it was
the only point urged before the Court. The question then arises as to what is
meant by "in similar circumstances in regard to a previous year".
Learned Counsel for the respondent submits that we should understand these
words to mean that the appellant relied on the order dated February 21, 1956,
granting the certificate of fitness in regard to the decision of the High Court
in T.R.C. 120 of 1953 solely as some sort of precedent and no more. On that
basis learned Counsel strenuously contended that the mere fact that in regard
to an earlier year a certificate was granted would not by itself render an
order refusing a certificate in a later year erroneous on the ground of patent
error. We have already dealt with this aspect of the matter. We do not,
however, agree that this is the proper construction of the argument that they
rejected. The order dated February 21, 1956, in relation to the previous year
188 was placed before the court and was relied on not as a binding precedent to
be followed but as setting out the particular substantial questions of law that
arose for decision in the appeals, and the attention of the Court was drawn to
the terms of the previous order with a view to point out the failure to
appreciate the existence of these questions and to make out that the statement
in the order of September, 1959 that no substantial question of law was
involved in the appeals was erroneous on the face of it.
This is made perfectly clear by the contents
of the petition for review where the aspect we have just now set out is
enunciated. The earlier order being of the same Court and of a Bench composed
in part of the same Judges, the earlier order was referred to as a convenient
summary of the various points of law that arose for the purpose of bringing to
the notice of the Court the error which it committed in stating that no
substantial question of law arose in the appeals. If by the first sentence the
learned Judges meant that the contention which they were called upon to
consider was directed to claim the previous order of 1956 as a binding
precedent, they failed to appreciate the substance of the appellant's argument.
If, however, they meant that the matters set out by them in their order
granting a certificate in relation to their decision in T.R.C. 120 of 1953 were
not also involved in their judgment in T.R.Cs. 75 to 77 they were in error, for
it is the case of no one that the questions of law involved were not identical.
If, besides, they meant to say that these were not substantial questions of law
within Art. 133(1), they were again guilty of error. The reasoning, therefore,
of the learned Judges in the order now under appeal, is no ground for rejecting
the applications to review their orders of September, 1959.
We therefore consider that the learned Judges
were in error in rejecting the application for review and we hold that the
petitions for review should have been allowed. We only desire to add that in so
holding we have not in any manner taken into account or been influenced by the
view expressed by this Court in Tungabhadra 189 Industries Ltd. v. The
Commercial Tax Officer, Kurnool(1) regarding the construction of Rule 18(2) of
the Turnover & Assessment Rules, since that decision is wholly irrelevant
for considering the correctness of the order rejecting the applications for
review which is the only question for decision in these appeals.
Before concluding we desire to make an
observation arising out of an appeal made to us by learned Counsel for the
respondent that even if the appeal were allowed we should make no direction as
regards costs against his client. The right of the appellant to the benefit of
the exemption which he claimed and which was disallowed to him by the judgment
of the High Court in T.R.Cs 75, 76 and 77 really depended on the correct
construction of r. 18(2) of the Turnover & Assessment Rules and in
particular on the meaning of the expression "groundnut oil" occurring
there--whether it included "hydrogenated oil". This Court in its
judgment in M/s Tungabhadra Industries Ltd. v. The Commercial Tax Officer,
Kurnool(1) pronounced on the proper construction of the word 'groundnut oil'
occurring in r. 1 8 of the Turnover & Assessment Rules as they then stood.
The assessment proceedings for 1950-51, 1951-52 and 1952-53 had not attained
finality against the assessee by the termination of all proceedings, because
there were still applications for review pending before the High Court. In the
circumstances, it would have been reasonable to expect that the Sales Tax
authorities should have afforded the appellant the benefit of the decision of
this Court in regard to these later years also unless there was some
insuperable difficulty or other circumstance in the way of their doing so, and
learned Counsel for the respondent has brought none to our notice. That is so
far as regards the merits of the controversy in the tax revision cases in which
certificates were sought. Of course, if on any technical or similar points the
State is entitled to succeed indisputably they would not be prevented from
doing so and they would be entitled (1) [1961] 2 S.C.R. 14.
190 to collect the tax as assessed and as
decided in its favour by the High Court. But when the respondent fails in the
objections raised to prevent the matter coming to this Court, we do not see any
justification for the plea that costs should not follow the event but that the
appellant should be deprived of it bright to costs.
In the result the appeal is allowed and the
common judgment of the High Court in the three appeals is reversed and the
petitions for review--C.M.Ps 4672, 4673 and 4674 of 1959 on the file of the
High Court are allowed with costs here and in the High Court--one set of
hearing fees.
Appeal allowed.
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