Intentional withholding or suppression of evidence by a party does not fall within the scope of "facts which were not before it (Tribunal) when it passed the order" under S. 12A (6) (a) of the Madras General Sales Tax Act, 1939, and therefore does not entitle the party to a review of the Tribunal's order.

Judgment

S. K. DAS, J. : These two appeals, one with special leave from this Court and the other on a certificate granted by the High Court of Andhra, have been heard together and this judgment will govern them both.

2. The facts are similar and the short question for decision is whether the appellant, M/s. Chandaji Kubaji and Company, Guntur, was entitled to apply under S. 12A (6) (a) of the Madras General Sales Tax Act, 1939 (Madras Act 9 of 1939) as applied to Andhra, for a review of an order of the Appellate Tribunal made under sub-sec. (4) of Sec. 12A of the said Act. The relevant facts are these. The appellant is a dealer in ghee, groundnut oil, chillies etc., and was carrying on its business at Guntur. In Civil Appeal No. 420 of 1957, the Deputy Commercial Tax Officer, Guntur assessed the appellant to sales tax for the year 1948-49 on a turnover of Rs. 28,69,151 and odd. The appellant having unsuccessfully appealed to the Commercial Tax Officer, Guntur, made a second appeal to the Sales Tax Appellate Tribunal, hereinafter called the Tribunal. Before the Tribunal the appellant contended inter alia that out of the total turnover a sum of Rs. 10,45,156 and odd related to commission on purchase of commodities taxable at the stage of sale on behalf of principals resident outside the State of Andhra and was not therefore taxable by the respondent State. In respect of this plea the Tribunal said:

"As regards the alleged commission agency business to the tune of Rs. 10,45,156-4-9 the appellants have neither advanced arguments nor placed before us any materials in support of the contention raised in this behalf."

In the result the Tribunal dismissed the appeal on 30-5-1953.

3. In Civil Appeal No. 142 of 1958 the appellant was assessed by the Deputy Commercial Tax Officer, Guntur, on a net turnover of Rs. 28,72,083 and odd for the year 1949-50. The appellant objected to the inclusion of a sum of Rs. 19,89,076 and odd on the ground that the goods relating thereto had been consigned to self and dispatched to places outside the State and in fact were delivered outside the State. This plea was disallowed by the Sales Tax authorities, and the Tribunal said:

"In the grounds of appeal it has been urged with regard to these sale transaction the ownership in the goods continued to vest in the appellant till the sale price was collected and the goods were delivered to the buyers at places outside the State. Beyond advancing a broad argument of this type no material has been placed before us or was placed before the assessing authority or the Commercial Tax Officer to support the appellant s version that the property in the goods passed to the buyer only at places outside the State."

.... .... .... ...

"It is not denied that though contracts in writing were not entered into, these transactions were the result of correspondence between the appellant on the one hand as seller and various persons on the other as buyers. It is conceded that such correspondence exists but the appellants have not chosen to make this correspondence available either to us or to the officer below. When documents which would establish the nature of the transaction beyond doubt are available and have been withheld by the appellant, the normal result is that an inference adverse to his contention has be drawn. We are accordingly of the opinion that in this case, the sales must be deemed to have taken place within this State and that they have been rightly included in the taxable turnover."

The appeal was disposed of on this finding on 19-8-1952.

4. In respect of both the aforesaid orders the appellant filed application for review under S. 12A (6) (a) of the Act. That section, in so far as it is relevant for these appeals, reads:

"12A (6) (a) -The Appellate Tribunal may, on the application either of the assessee or of the Deputy Commissioner, review any order passed by it under sub-section (4) on the basis of facts which were not before it when it passed the order:

Provided that