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The Commissioner, Trade Tax, U.P. Lucknow v. S/S Hindustan Rice Mill - SALES/TRADE TAX REVISION No. 841 of 2000 [2006] RD-AH 20791 (8 December 2006)


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The Commissioner, Trade Tax, U.P., Lucknow.        ....Applicant


S/S Ram Rakshpal, Nazibabad. ...Opp. Party


Hon'ble Rajes Kumar, J.

Present revision under section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 29.02.2000 relating to the assessment year 1981-82.

Against the assessment order for the assessment year 1981-82, dealer/opposite party (hereinafter referred to as "Dealer") dealer filed appeal before the Deputy Commissioner (Appeals), Trade Tax, Moradabad. The aforesaid appeal was dismissed as barred by limitation vide order 24.12.1999. Dealer filed second appeal before the Tribunal. Tribunal by the impugned order held that the appeal was not barred by limitation. Tribunal held that the order has not been served upon the dealer on 09.04.1986 as claimed by the revenue authorities and, therefore, appeal filed after obtaining the certified copy of the order on 18.11.1999 was not barred by limitation. Tribunal further proceeded to decide the appeal on merit and set aside the assessment order itself.

Heard learned Standing Counsel.

Learned Standing Counsel submitted that the record shows that the order was served on 09.04.1986 on the dealer itself and the further penalty proceedings has also been taken against the dealer in the year 1987. Therefore, it can not be believed that the dealer had no knowledge about the order prior to November, 1999 and the Tribunal has erred in holding that the appeal was not barred by limitation. He submitted that the Tribunal has erred in deciding the appeal on merit. Tribunal after coming to the conclusion that the appeal was within time, should have remanded back the matter to the Deputy Commissioner (Appeals) for deciding the appeal on merit. I find substance in the argument of learned Standing Counsel in part.

So far as view of the Tribunal that the appeal was not barred by limitation, inasmuch as the order has not been served on 09.04.1986 is concerned, I do not see any reason to interfere. Tribunal held that the signature on the acknowledgement on 09.04.1986 do not tally with the signature admitted by the dealer on the memo of appeal and other signature available on record. Tribunal accordingly, held that the assessment order was not in fact served on 09.04.1986. Finding of the Tribunal is finding of fact, does not require any interfere. However, Tribunal has erred in deciding the appeal on merit. First appellate authority has dismissed the appeal as barred by limitation and, therefore, Tribunal should have remanded back the matter to the Deputy Commissioner (Appeals) to decide the appeal on merit instead of deciding the appeal on merit at its own stage. Therefore, order of the Tribunal to this extent is erroneous and is liable to be set aside.

In the result, revision is allowed in part. Order of the Tribunal dated 29.02.2000 is set-aside to the extent deciding the appeal on merit. Matter is remanded back to the first appellate authority to decide the appeal no.1252 of 1999 for the assessment year 1981-82 on merit.




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