Allowed

M/S Kisan Sahkari Chini Mills Ltd. v. the Commissioner of Commercial Tax Lucknow

Allahabad HC3 Mar 2020STRE/48/2020

Case brief

AI extract

What is this about?

Allowed a revision petition condoning substantial delay in filing a trade tax appeal. The single-judge High Court held that unexplained financial closure and Employee's retirement justified condonation. Previous orders rejecting the appeal were set aside, and the appeal was remanded for hearing after deposit.

What did the court decide?

The orders of First Appellate Court (30.6.2017) and Commercial Tax Tribunal (6.11.2019) set aside. First Appeal No.1324 of 2016 restored subject to Rs.5000 deposit with Legal Services Authority within

M/S Kisan Sahkari Chini Mills Ltd. Vs the… — Contract and Commercial Disputes | Allahabad HC (2020)

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Court No. - 41

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Case :- SALES/TRADE TAX REVISION No. - 48 of 2020

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Revisionist :- M/S Kisan Sahkari Chini Mills Ltd. Opposite Party :- The Commissioner Of Commercial Tax Lucknow Counsel for Revisionist :- Amitabh Agarwal Counsel for Opposite Party :- C.S.C.

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Hon'ble Siddhartha Varma,J.

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This Revision has been filed against the order dated 30.6.2017 passed by the First Appellate Court and against the judgment and order dated 6.11.2019 passed by the Second Appellate Court i.e. the Commercial Tax Tribunal.

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When an assessment had taken place, an order under Rule 4(6) read with section 4(a)(3) of the Entry Tax Act had been passed on 31.3.2009. The Appeal since was filed after a delay of six years, four months and 20 days, the same was accompanied by an application under section 5 of the Indian Limitation Act (as per section 9(6) of the Trade Tax Act, Section 5 of the Indian Limitation Act has been applied to the filing of appeals which were filed under section 9 of the U.P. Trade Tax Act).

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The contention of learned counsel for the applicant in the Revision is that before the First Appellate Court it was vehemently argued that the order dated 31.3.2009 was got served on one Jaipal who was never an employee of the applicant. The further contention of the learned counsel for the applicant before the First Appellate Court was that the applicant was a Co-operative Society engaged in the production of sugar and molasses and it had in fact closed down due to a financial crunch in the year 2010 and only on the intervention of the Chief Minister of the State of Uttar Pradesh was it revived in the year 2013. The further reason given in the application for

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the condonation of delay was that on account of the fact that the person who was required to inform the applicant in Revision had taken a voluntary retirement and, therefore, the Appeal could not be filed in time. To show the bona-fides of the applicant about the fact that knowledge had drawn very late, the applicant had informed the First Appellate Court that the certified copy of the impugned assessment was received only on 22.12.2016 and the First Appeal was filed on 28.12.2016. Both the Courts even though had looked into the reasons as had been given in the application under section 5 of the Indian Limitation Act, they had not in fact dealt with those reasons. Learned counsel for the applicant contends that if an order does not deal with the reasons given in the application filed under section 5 of the Indian Limitation Act, then the order cannot be sustained in the eyes of law. Learned counsel for the applicant in the end submitted that the affidavit filed in support of the application for condonation of delay was never rebutted by any person or authority in the Courts below.

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Learned Standing Counsel in reply, however, submitted that a delay of six years and four months was definitely there in the filing of the appeal and for cogent reasons, the two Courts below had rejected the application filed under section 5 of the Indian Limitation Act.

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The questions of law on which the Revision was heard were enumerated in the Revision as question of law Nos.I to IV.

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Having heard learned counsel for the applicant and the learned Standing Counsel and upon having gone through the orders, I find that the reasons given in the application were sufficient to condone the delay. When the affidavit had gone unrebutted and in the affidavit it has been stated that Jaipal was not an employee of the applicant and further it was stated that the

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applicant was facing financial crunch and the employees were taking voluntary retirement, I am of the view that the delay in filing the appeal ought to have been condoned even though there was a substantial delay.

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Having had found that there were sufficient reasons given in the delay condonation application, the delay is being condoned. The judgment and order dated 30.6.2017 passed by the First Appellate Court and the judgment and order dated 6.11.2019 passed by the Second Appellate Court (Commercial Tax Tribunal) are hereby set aside. The First Appeal No.1324 of 2016 year 2006-07 (Entry Tax) shall be restored to its original number provided the applicant deposits Rs.5000/- with the Legal Services Authority within a period of three weeks from today. The First Appeal shall be heard only on the production of proof of deposit.

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The Revision is, accordingly, allowed.

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Order Date :- 3.3.2020 GS

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(Siddhartha Varma, J.)

M/S Kisan Sahkari Chini Mills Ltd. v. the Commissioner of Commercial Tax Lucknow

Case brief

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M/S Kisan Sahkari Chini Mills Ltd. v. the Commissioner of Commercial Tax Lucknow

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M/S Kisan Sahkari Chini Mills Ltd. Vs the Commissioner of Commercial Tax Lucknow