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M/s Bharat Coal Depot v. The Commissioner of Sales Tax - SALES/TRADE TAX REVISION No. 1608 of 1992  RD-AH 168 (25 May 2003)
SALES TAX REVISION NO.1608 OF 1992
M/s Bharat Coal Depot ....Applicant
The Commissioner of Sales Tax ....Opp.Party
Hon'ble Rajes Kumar, J.
This revision is directed against the order of Tribunal dated 24.09.1992 relating to the assessment year 1981-82.
For the assessment year 1981-82, the assessing authority passed the ex-parte assessment order on 28.12.1985. Since the assessment order was ex-parte, applicant moved an application, under Section 30 of the Act, for reopening of the case. The said application was rejected vide order dated 06.08.1987. Thereafter, applicant filed the appeal against the original assessment order alongwith application for condonation of delay on 17.08.1987. In the application under Section 5 of Limitation Act, the reasons for the delay was explained by the applicant that since the assessment order was ex-parte, the applicant was bonafidely prosecuting its case under Section 30 of the Act and therefore, could not file the appeal and when the application under Section 30 was rejected, filed the appeal on 17.08.1987. Assistant Commissioner (J) Sales Tax, Muzaffar Nagar rejected the application under Section 5 of Limitation Act on the ground that the applicant could have avail both the remedies simultaneously, namely, one by filing application under Section 30 of the Act and another by filing appeal. Applicant filed second appeal before Tribunal, which was also rejected. Tribunal has observed that the applicant has not deposited the admitted tax. Tribunal further observed that merely because the application under Section 30 of the Act was filed, it can not be said that the applicant could not file the appeal also.
I have heard Sri R.R.Agrawal, learned counsel for the applicant and learned Standing Counsel. I have perused the order of Tribunal and the authorities below.
The rejection of appeal on the ground that sufficient cause was not shown for delay and the appeal was filed beyond time and secondly, the admitted tax was not deposited, hence, the appeal was not maintainable are two different grounds. The present case, appeal was rejected on the ground that it was filed beyond time and the delay could not be properly explained and therefore, observations of Tribunal with regard to admitted tax are not justified. It is true, that the applicant could file the application under Section 30 of the Act for setting aside the ex-parte order as well as the appeal against the ex-parte order before first appellate authority but if he chosen to file the application under Section 30 of the Act only and the appeal could not be filed immediately on the receipt of the order within thirty days and the same was filed after the rejection of the application under Section 30 of the Act alongwith application for condonation of delay, it has to be seen whether the reasons for the delay was sufficient or not. In the case of CST Vs. Vaish Glass Works reported in 1974 UPTC, 101. It has been held by this Court that if the dealer was prosecuting its case under Section 30 of the Act and filed the appeal after rejection of the application under Section 30 of the Act reason was ''sufficient cause' for the purposes of condonation of delay. In the matter on condonation of delay liberal and pragmatic view should be taken and not pedantic. Looking to the facts and circumstances of the case, the delay in filing the appeal is liable to be condoned. However, it would be open to the first appellate authority to consider while entertaining the appeal whether the admitted tax as required under Section 9 of the Act has been deposited or not. In case, if it is deposited, the first appellate authority may proceed to decide the appeal on merit.
In the result, the revision is allowed and the order dated 24.09.1992 passed by Tribunal is set aside. The delay in filing the first appeal is condoned and the first appellate authority is directed to entertain the appeal and decide on merit only if it is found that the admitted tax has been deposited.
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