High Court of Judicature at Allahabad
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M/S Bhavna Aeromatics Sambhal Thru' Sole Prop. Bramanand v. Commissioner Of Trade Tax U.P. Lucknow - SALES/TRADE TAX REVISION DEFECTIVE No. - 14 of 2003  RD-AH 14927 (3 September 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
TRADE TAX REVISION NO. (14) of 2003.
TRADE TAX REVISION NO. (21) of 2003.
M/S Bhavna Aeromatics, Moradabad. Applicant
The Commissioner, Trade Tax, U.P. Lucknow. Opp.Party.
Hon'ble Rajes Kumar, J.
Present two revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 12th September, 2001 relating to the assessment year, 1993-94 both under the U.P. Trade Tax Act and Central Sales Tax Act.
It appears that two Ex-parte assessment orders have been passed both under the U.P. Trade Tax Act and Central Sales Tax Act. Applicant moved two applications under section 30 of the Act for setting aside the ex-parte assessment orders and re-opening of the case on the ground that the applicant could not appear on the date fixed for hearing because the proprietor of the Firm Sri Bramanand was ill and in support of his contention, medical certificate of Dr. Arvind Gupta was filed. It appears that the applicant has also not participated in the proceeding under section 30 of the Act. Both the applications under section 30 of the Act were rejected. Applicant filed two appeals before the Deputy Commissioner (Appeals), Trade Tax, Moradabad, who vide order dated 14.05.2001 dismissed both the appeals. Applicant further filed two appeals before the Tribunal. Tribunal by the impugned order dismissed both the appeals. Tribunal held that in Nursing Home, there is always patient registration number but the same not been mentioned in the Medical Certificate.
Heard the learned counsel for the parties.
Learned counsel for the applicant submitted that in the Medical Certificate, the name of the Doctor and his Registration number is duly mentioned. Mere non mention of the patient registration number in the letter pad of the Nursing Home, the claim of the applicant cannot be rejected. He submitted that the Tribunal has taken pedantic view in rejecting the applications.
Learned Standing Counsel submitted that the conduct of the applicant was not good. He submitted that earlier also ex-parte assessment orders were passed which were reopened under section 30 of the Act and ex-parte assessment orders were passed and even in the proceedings under section 30 of the Act also the applicant did not participate. Therefore, the applications under section 30 of the Act have rightly been rejected.
Having heard the learned counsel for the parties, I have perused the order of the Tribunal and the authorities below.
It appears that the conduct of the applicant is not appreciable and he remained negligent.
In the case of Mahendra Rathore Versus Omkar Singh and others reported in AIR 2002 SC, 505, the Apex Court held that in the matter of recalling, pragmatic view should be taken. In my view, the Tribunal has taken pedantic view to consider the applications for setting aside the ex-parte order and not a pragmatic view.
In view of the above, in the interest of justice, applications under section 30 of the Act both under the U.P. Trade Tax Act and Central Sales Tax Act for the assessment year, 1993-94 are liable to be allowed subject to costs of Rs.5,000/- for both the cases.
In the result, both the revisions are allowed. The order of the Tribunal dated 12th September, 2001 is set aside and the applications under section 30 of the Act for the assessment year, 1993-94 both under the U.P. Trade tax Act and Central Sales Tax Act are allowed subject to the deposit of Rs.5,000/- within a period of one month. Applicant shall file certified copy of this order before the assessing authority within a period of one month and the assessing authority thereafter fix a date of hearing for final assessment. It is made clear that no further notice need be issued to the applicant.
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