Allowed

S/S Vijay Dry Fruit Company Gola Deena Nath Varanasi v. the Commissioner Commercial Tax U.P.Lucknow

Allahabad HC8 Jul 2022STRE/778/2010

Case brief

AI extract

What is this about?

The Allahabad High Court allowed a revision against the Commercial Tax Tribunal, holding that service via counsel was invalid post-amendment. Consequently, the delay in filing the appeal could not be summarily rejected. The Tribunal was ordered to remit the matter for hearing on merits with condoned delay.

What did the court decide?

The order dated 19.04.2010 is set aside; the matter remitted to the Tribunal to hear and decide the appeal on merits treating delay as condoned.

S/S Vijay Dry Fruit Company Gola Deena Nath… — Civil Procedure and Limitation | Allahabad HC (2022)

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Court No. - 38

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Case :- SALES/TRADE TAX REVISION No. - 778 of 2010

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Revisionist :- S/S Vijay Dry Fruit Company Gola Deena Nath Varanasi Opposite Party :- The Commissioner Commercial Tax U.P.Lucknow Counsel for Revisionist :- Aloke Kumar Counsel for Opposite Party :- C.S.C.

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri Puneet Arun, learned counsel for the assessee and Sri A.C. Tripathi, learned Standing Counsel for the revenue.

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Present revision has been filed against the order of the Commercial Tax Tribunal, Bench-4, Varanasi dated 19.04.2010 in Second Appeal No. 40-A/2000 for A.Y. 1981-82. By that order, the Tribunal has rejected the assessee's appeal as time barred.

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The revision has been pressed on the following question of law:

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"Whether in absence of service of the first appeal order on the assessee, the Tribunal has erred in rejecting the explanation for delay in filing the appeal against that order ?"

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Having heard learned counsel for the parties and having perused the record, it is undisputed, the appeal was filed by the assessee against the order of the first appeal authority dated 08.02.1985 in Appeal No. 1317 of 1983 for A.Y. 1981-82. Further, it is admitted to the revenue as has also been recorded by the Tribunal that certified copy of the above order was served on the assessee on 16.02.1985 through his counsel Sri Uma Shankar Prasad.

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Thus, it is not the case of the revenue that certified copy of the order of the first appeal authority was ever served on the assessee. Prior to amendment made to Rule 77-A of the U.P. Sales Tax Rules, 1948 (hereinafter

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referred to as the 'Rules'). Rule 77-A of the Rules read as below:

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"Unless otherwise provided in the Act or the Rules anything which is by the Act or the Rules require are permitted to be done by a dealer except when he is required to attend personally for examination on oath or affirmation may be done by a lawyer, an accountant or an authorized agent appointed by the dealer in writing in this behalf and process served or given to the dealer in person and all the provisions of the Act and the Rules relating to the service of process on or the giving of a notice to a dealer shall be applicable to the service of process on or the giving of a notice to such a lawyer, accountant or the authorised agent."

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With effect from 04.12.1979, by virtue of U.P. Act No. II of 1980, the above Rule was amended and the words "and process served or given to the dealer in person and all the provisions of the Act and the Rules relating to the service of process on or the giving of a notice to a dealer shall be applicable to the service of process on or the giving of a notice to such a lawyer, accountant or the authorised agent" were omitted.

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Consequently, as held in M/S Arjun Lal Upadhyaya Vs. The Commissioner of Sales Tax, U.P., 1987 ATJ 164 , the service of order effected on the counsel for the assessee, was no service.

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Other than the observation of the Tribunal, noted above, copy of the order of the first appeal authority had not been served on the assessee, on any date prior to his obtaining certified copy of the same.

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Since, the rule prescribed the mode of service and since that service was not made, in the present facts, the assessee became entitled to claim discretion on the issue of limitation. Here, it may not be lost sight that the assessee further claims to be a person who has suffered

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a serious illness owing to which he is largely unable to function normally.

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By earlier order, the assessee was required to bring on record documents filed before the Tribunal. The supplementary affidavit shows that such documents have not been made available to the assessee, perhaps because for reasons attributable to passage of time.

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Thus, in the entirety of facts and circumstances of the case, on one hand, the reasoning given by the Tribunal to reject the delay condonation application is found to be erroneous in law and on the other, the assessee also appears to be entitled to some discretion owing to the facts and circumstances noted above.

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Accordingly, the present revision is allowed . The order dated 19.04.2010 is set aside. The matter is remitted to the Tribunal to hear and decide the appeal on merits treating the delay to have been condoned. The question of law, framed above, is answered in the affirmative i.e. in favour of the assessee and against the revenue.

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Order Date :- 8.7.2022 Abhilash

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Digitally signed by ABHILASH SINGH Date: 2022.07.08 18:59:39 IST Reason: Location: High Court of Judicature at Allahabad

S/S Vijay Dry Fruit Company Gola Deena Nath Varanasi v. the Commissioner Commercial Tax U.P.Lucknow

Case brief

What is this about?

What did the court decide?

S/S Vijay Dry Fruit Company Gola Deena Nath Varanasi v. the Commissioner Commercial Tax U.P.Lucknow

Case brief

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What did the court decide?

What the court decided

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