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S/S Drug Marketing Service v. The Commissioner, Trade Tax, U.P., Lucknow - SALES/TRADE TAX REVISION No. 2434 of 2004  RD-AH 1450 (19 November 2004)
Court no. 55
Trade Tax Revision no. 2434 of 2004.
Trade Tax Revision no. 2435 of 2004.
M/S Drug Marketing Service, Varanasi. ... Revisionist.
Commissioner of Trade Tax, U. P. Lucknow ... Respondent.
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 12.2.2004 relating to the assessment years 1980-81 under the U. P. Trade Tax Act as well as under the Central Sales Tax Act.
The present revisions are being decided at the admission stage itself with the consent of both the parties in accordance with law.
Tribunal has decided two Appeal nos. 857 of 2000 and 858 of 2000 vide impugned ex-parte order. Allegation of the applicant is that without serving notice and without giving any opportunity of hearing, appeals have been decided ex-parte. In support of his contention, certified copy of the Order-sheet has been filed as Annexure-5 to the revision.
Heard Counsel for the parties.
Section 10 (5) of the Act says that the Tribunal may decide the appeal after giving the parties a reasonable opportunity of being heard. Perusal of Order-sheet shows that the notice of hearing has not been served to the applicant. On several occasions, dates were adjourned in the absence of service of notice and thereafter, appeals have been finally heard ex-parte on 9.2.2004 without serving notice of hearing to the applicant and without giving any opportunity of hearing. It would be relevant to refer some of the entries of Order-sheets:-
6.11.2003 Soochna Patra kay Abhav mey dinank 16.12.2003 kay liye Sthagit Kiya Gaya. Soochna Punah Jari ho.Sd/-
16.12.2003 Soochna Patra kay Abhav mey Vad dinank 2.1.04 kay liye Sthagit kiya Gaya. Soochna Punah jari Ho. Sd/-
2.1.04. Aaj dinank 2.1.04 ko appeal sunwai hetu Sadasya Vyapar Kar Adhikaran, Varanasi Peeth-3 Varanasi kay samakcha Sri S. P. Singh, H. J. S. avam Sri A.K. Nigam, Member ke Khandj Peeth may pesh ki gayee. Vyapari ke aor say Taha Vibhag ke aor say koi upasthit nahi hua. Vad ek Pakcheeya Nistaran hetu Rakhi gayee dinank 21.1.04 ko Ghosit Kiya Jayenga. Sd/-
21.1.04. Samayabhav kay karan vad ka nirnay nahi kiya Gaya atah vad Punah Nistaran hetu dinank 9.2.04 ko pesh ho. Sd/-
9.2.04 Aaj yeh appeal Sri S. P. Singh, H. J. S., Nyayaik Sadasya Tatha Sri A. K. Nigam, Sadasya Peeth-5 kay Khand Peeth kay Samakcha Sunwai Hetu Prastut Ki Gayee Vadi ki aor say Koi Vad hazir pairvi nahi aya tatha Prativadi ki aor say Sri V. P. Singh D.C.N.R. Upasthit Aye. Sd/-9.2.04 D. C. N. R.
12.2.04. Vyapari Dwara Dayar Duteeya appeal Asweekar ke Gayee. Sd/-
17.3.04. Nirnay Patra ke Pratilipi Kardata par Tamil Karney Hetu Asstt. Kamisnar Khand-9 Varanasi ki Patra Sankhya 330 dinank 17.3.04 Dwara Preshit kar Dee Gayee Hai. Sd/-
Perusal of the aforesaid entries shows that the appeal was heard without serving notice of hearing and without giving proper opportunity of hearing and therefore, impugned orders are bad in law and are liable to be set aside. Perusal of impugned orders shows that only an observations have been made in the order that the appellant could not appear inspite of service of notice which is contrary to the record. No details of service of notice have been given.
Before parting with the case, I may observe that if the Tribunal proceed to decide the case ex-parte, it is necessary to give details about the service of notice. Mere observation that inspite of service of notice, dealer could not appear, is not sufficient. In the present case, it is clear that the notice has not been served, still such observation about the service of notice has been made in the order which is not fair on the part of the Member Tribunal. Member Tribunal should act fairly and judiciously while deciding the appeal in accordance to law. Ex-parte decision not only takes away right of the party to be heard and not only it is in violation of the provisions of the Act but it also amounts to harassment and subject to financial loss to the party concern therefore, Tribunal should take proper care of and such situation should be avoided.
In the result, both the revisions are allowed. Order of Tribunal dated 12.2.2004 is set aside and the matter is remanded back to the Tribunal with the direction to decide the appeal afresh. Applicant is also directed to appear before the Member Tribunal concerned on 13.12.2004. On the said date either the Member Tribunal may hear the appeals or fix any other date for hearing. No notice is required to be issued to the applicant. A copy of the order may be sent to the Chairman, Tribunal, Trade Tax, Lucknow for necessary direction and action.
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