Allowed

M/S Bhargawa Book Depot v. the Commissioner Commercial Tax U.P.Lucknow

Allahabad HC17 Apr 2019STRE/841/2010

Case brief

AI extract

What is this about?

Court allowed two tax revisions against Tribunal orders proceeding ex-parte. Holds Tribunal must reconsider revisionist's claim of illness and non-production of Forms while providing opportunity of hearing within six months.

What did the court decide?

Order dated 17.02.2010 by Tribunal set aside. Matter remanded to Tribunal to reconsider revisionist's claim and provide hearing within six months.

M/S Bhargawa Book Depot Vs the Commissioner Commercial… — Property and Title | Allahabad HC (2019)

¶1

Court No. - 5

¶2

Case :- SALES/TRADE TAX REVISION No. - 841 of 2010 Applicant :- M/S Bhargawa Book Depot Opposite Party :- The Commissioner Commercial Tax U.P. Lucknow Counsel for Applicant :- Aloke Kumar Counsel for Opposite Party :- C.S.C

¶3

AND

¶4

Case :- SALES/TRADE TAX REVISION No. - 848 of 2010

¶5

Applicant :- M/S Bhargawa Book Depot. Opposite Party :- The Commissioner Commercial Tax. Counsel for Applicant :- Alok Kumar

¶6

Hon'ble Ashok Kumar,J.

¶7

Heard Sri Aloke Kumar, learned counsel for the revisionist and Sri B.K. Pandey, learned Standing Counsel for the respondents.

¶8

The Sales/Trade Tax Revision No.841 of 2010 and Sales/Trade Tax Revision No.848 of 2010 are filed against the order dated 17.02.2010 passed by Commercial Tax Tribunal, Bench-II, Varanasi in Second Appeal No.1 of 2010 for the assessment year 2002-03 and in Second Appeal No.2 of 2010 for the assessment year 2003-04 respectively, under Section 58(1) of the U.P. Value Added Tax Act 2008 (hereinafter referred to as 'the Act') .

¶9

By means of present revisions following questions of law are referred for opinion of this Court.

¶10

(A) Whether Commercial Tax Tribunal was legally justified in rejecting the application made for setting aside ex-parte order?

¶11

(B) Whether Commercial Tax Tribunal was legally justified in not giving an opportunity of hearing to the applicant?

¶12

(C) Whether Tribunal can be permitted to rectify its own order on the application of the applicant specifically when the Tribunal itself had rejected the said application?

¶13

(D) Whether Commercial Tax Tribunal was legally justified in not recording its own independent finding on the reason of non appearance on the date fixed i.e. the illness of the applicant?

¶14

(E) Whether Commercial Tax Tribunal was legally justified in not giving an opportunity for presentation of the statutory Forms which could not be produced before the Tribunal on the earlier occasion as the Tribunal had proceeded ex-parte?

¶15

Brief facts of the case are that the revisionist is indulged in the business of publication and printing of various kind of books in his own account which includes the text book of the Assam State Government. For the purpose of printing the text books, the paper was supplied by the State Government of Assam to the revisionist on job work basis on which the revisionist has charged the printing charges and after printing and binding, the text books were returned to the State of Assam.

¶16

The assessing authority has imposed the tax upon the revisionist on the paper which has been received by the revisionist from outside the State of U.P./outside the Municipal Area of Varanasi. Against the assessment order, the first appeal was filed by the revisionist under Section 9 the Act before the Joint Commissioner (Appeals), Varanasi. The Joint Commissioner (Appeals), Varanasi vide his order dated 25th August, 2006 has rejected the appeal and has affirmed the order passed by the assessing authority.

¶17

Against the order of the first appellate authority, the second appeal was preferred by the revisionist before the Trade Tax Tribunal, Varanasi which was dismissed by the Tribunal vide its order dated 02.12.2009.

¶18

Against the order dated 02.12.2009, the Sales/Trade Tax Revision Defective No.355 of 2010 and 356 of 2010 have

¶19

been filed by the revisionist.

¶20

The application under Section 22 of the Act was filed by the revisionist before the Tribunal after the decision of the Tribunal dated 02.12.2009.

¶21

On the application filed under Section 22, the impugned orders are passed by the Tribunal dated 17.02.2010 which are challenged by the revisionist by means of present revision petitions.

¶22

Contention of the counsel for the revisionist is that the Tribunal has proceeded ex parte while passing the order dated 02.12.2009.

¶23

Contention of learned counsel for the revisionist is that on the date fixed before the Tribunal the assessee could not appeared for the reason that the assessee was ill. A due intimation about the illness of the assessee was given by the representative before the Tribunal. The Tribunal while considering the application under Section 22 has noted in its impugned order that the assessee has specifically stated in the said application that the assessee was not well on the date fixed. The Tribunal has proceeded to decide the said application filed under Section 22 on merits and reached at a conclusion that the order passed by the authorities below was justified and that the assessee failed to produce the requisite Form 'E' before the assessing authority as well as before the first appellate authority in time.

¶24

Learned counsel for the revisionist has stated that the revisionist has challenged the validity of the U.P. Tax on Entry of Goods into Local Area Act, 2000 and an interim

¶25

order was passed by this Court staying the realisation of tax from the revisionist. The interim order, however, was continued till decision by this Court holding that the levy of entry tax is valid.

¶26

The contention of learned counsel for the revisionist is that since an interim order was passed by this Court and that the requisite Form 'E' are received by the revisionist from the dealers who affected the supply of papers for the purpose of printing subsequent to the orders passed by the assessing authority as well as by the first appellate authority, therefore, the prayer was made by the revisionist before the Tribunal to accept Form 'E' and grant benefit to the revisionist.

¶27

The Tribunal has refused to accept the Form 'E' produced by the revisionist on 26.03.2007 on the ground that the same are not produced either before assessing authority or before first appellate authority.

¶28

Learned counsel for the revisionist has submitted that no specific finding has been recorded by the Tribunal with regard to the ailment of the revisionist and non-presence of the revisionist on the date of hearing of the appeal.

¶29

I have heard the learned counsel for the revisionist and learned Standing Counsel and perused the order impugned passed by the Tribunal.

¶30

Admittedly, the Tribunal has not recorded any specific finding with regard to non-appearance of the revisionist and the claim of the revisionist that he was not well on the date fixed. The Tribunal has recorded otherwise a finding that several opportunities were allowed to the revisionist

¶31

to furnish the explanation but since the revisionist failed to appear before the Tribunal there was no occasion but to conclude the proceeding. The Tribunal has, therefore, rejected the application filed under Section 22 however the tribunal has rectified the mistake which are noticed by treating it that there was mistake.

¶32

From perusal of the impugned order of the Tribunal and the pleadings, in my opinion, it would be appropriate to remand the matter to the Tribunal to reconsider the claim of the revisionist both on merits as well as nonappearance on the date fixed.

¶33

In view of the aforesaid, both the revisions are allowed . The order dated 17.02.2010 passed by the Tribunal is set aside. The matter is remanded to the Tribunal to reconsider the claim of the revisionist, strictly in accordance with law and pass appropriate reasoned order after providing opportunity of hearing to the revisionist within a period of six months from the date of production of certified copy of this order.

¶34

Order Date :- 17.4.2019 A.Kr.*

M/S Bhargawa Book Depot v. the Commissioner Commercial Tax U.P.Lucknow

Case brief

What is this about?

What did the court decide?

M/S Bhargawa Book Depot v. the Commissioner Commercial Tax U.P.Lucknow

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S Jaiswal Traders Vs the Commissioner of Trade Tax U.P. Lukcnow

M/S Prashant Kumar and Brothers and Another Vs Bharat Sanchar Nigam Limited (Bsnl) and 3 Others

Lalmati Devi and 2 Others Vs Civil Judge (Junior Division) and 7 Others

M/S Sangam Construction Company Vs the Commissioner of Trade Tax U.P. Lucknow

M/S Bhargawa Book Depot. Vs the Commissioner Commercial Tax.

Asa Engineers Private Limited Vs the Commissioner, Commercial Tax U.P