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M/S HARIOM POTTERIES MUNDAKHERA ROAD, KHURJA versus THE COMMISSIONER TRADE U.P. LUCKNOW

High Court of Judicature at Allahabad

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M/S Hariom Potteries Mundakhera Road, Khurja v. The Commissioner Trade U.P. Lucknow - SALES/TRADE TAX REVISION No. 838 of 2006 [2007] RD-AH 291 (5 January 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no.22

TRADE TAX REVISION NO.838 of 2006.

AND

TRADE TAX REVISION NO.839 of 2006.

AND

TRADE TAX REVISION NO.840 of 2006.

AND

TRADE TAX REVISION NO.841 of 2006.

M/S Hari Om Potteries, District Bulandshahr.  Applicant

Versus

The Commissioner, Trade Tax, U.P. Lucknow.                      Opp.Party.

Hon'ble Rajes Kumar, J.

Present four revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 18th May,  2006 relating to the assessment years, 1998-99 and 1999-2000 both under the U,.P. Trade Tax Act and Central Sales Tax Act.

Brief facts of the case are that for the aforesaid assessment years, ex-parte assessment orders have been passed on 5th February, 2002. The applicant filed applications under section 30 of the Act on 31.10.2002 after the expiry of 8 months for the reopening of the case. The said applications were rejected on 3rd February, 2003. Against the said orders, appeals were filed before the Joint Commissioner (Appeals), Trade Tax, Bulandshahr, which were dismissed on 24.7.2003. Against the said orders, second appeals were filed on 5th May, 2006 beyond time by 32-33 months along with the applications under section 5 of the Limitation Act. Tribunal by the impugned orders rejected the applications under section 5 of the Limitation Act. For the delay, the applicant has given explanation that the copy of the orders have been given to the counsel Sri Chhotey Lal, who could not file the appeals. In support of his contention, affidavit of Sri Chhotey Lal was filed. Tribunal held that the applicant has not filed his own affidavit and in the affidavit of Sri Chhotey Lal, it has not been said that when the copies of the orders were given and the name of Junior has also not been mentioned. On these facts, it has been held that it is unbelievable that the applicant kept quite for 32-33 months after giving instructions for filing of the appeals. Tribunal further held that the delay in filing the appeals were deliberate.

Heard Sri Vishwjeet, learned counsel for the applicant and Sri B.K. Pandey, learned Standing Counsel.

Sri Chhotey Lal, Advocate has filed affidavit in this Court, which has been replied by filing the counter affidavit. Learned counsel for the applicant submitted that the delay was caused due to the mistake for the counsel Sri Chhotey Lal to whom the copy of the orders were given within time for filing of the appeals, but the same could not be filed. He submitted that in the affidavit filed, Sri Chhotey Lal has disclosed the name of his Junior-cum-clerk Sri Anuj Gupta. He further stated that since the business has been closed in the year, 2002 and the applicant left Khurja as such the deponent could not communicate him.

Learned Standing Counsel submitted that the orders were served on 16.10.2003, therefore, the closure of the business since 2002 is wholly irrelevant. He further submitted that in paragraph 6, it has been stated that the papers have been handed over to the Junior-cum-clerk Sri Anuj Gupta to place on file and not for the purposes of the filing of the appeals. He further submitted that it is wholly un-believable that the person kept quite for three years without making any enquiry from the counsel about the filing of the appeals. He also submitted that even the past conduct of the applicant that he could not appear before the assessing authority for the purposes of the assessment, which resulted ex-parte orders, the applications under section 30 of the Act were filed beyond time after 8 months. Thus, the delay in filing the appeals is not liable to be condoned.

Having heard the learned counsel for the parties, I have perused the order of the Tribunal and the authorities below and the counter affidavit filed in reply to the affidavit of Sri Chhotey Lal.

In my opinion, it is a case of latches and negligence on the part of the applicant. No where, the applicant stated that when the copy of the orders were given to Sri Chhotey Lal for filing of the appeals. It has also not been explained that why after giving copy of the orders, he could not enquire about the filing of the appeals. It has also not been stated that whether the expenses for filing of the appeals have been given to the counsel. Affidavit of Sri Chhotey Lal filed before the Tribunal shows that no date is mentioned when the copy of the orders were given for filing of the appeals. In the affidavit filed before this Court, even no date is mentioned as to when the copies of the orders were given. In paragraph 6 of the affidavit, it has been stated that he has handed over the papers to Sri Anuj Gupta to place the same on the file. This also shows that there were no directions or any intend to file the appeals against the said orders. The closure of the business since 2002 is wholly irrelevant inasmuch as the orders have been served on 16.10.2003. As per the case of the applicant the copies of the orders were given to Sri Chhotey Lal for filing of the appeals, the same must be after 16.10.2003. Thus, the plea of Sri Chhotey Lal that due to closure of business in the year, 2002 he could not communicate the stand taken. In the circumstances, the applicant is not able to explain the long delay. The affidavit filed by Sri Chhotey Lal does not explain the delay of three years. It is a clear case of latches and negligence on the part of the applicant. Thus, I do not find any error in the order of the Tribunal in refusing to condone the delay on the facts and circumstances of the case.

In the result, all the four revisions fail and are, accordingly, dismissed.

Dated.05.01.2007.

VS.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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