High Court of Judicature at Allahabad
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S/S Prabhash Drug Centre v. The Commisioner, Trade Tax, U.P, Lucknow - SALES/TRADE TAX REVISION No. 1800 of 2004  RD-AH 637 (25 August 2004)
TRADE TAX REVISION NO.1800 OF 2004
S/s Prabhash Drug Centre, Varanasi. ....Applicant
The Commissioner, Trade Tax, U.P., Lucknow. ....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 20.05.2004 relating to the assessment year 1998-99.
Against the order passed on the application under section 30 of the Act dated 22.08.2001 applicant filed appeal before Joint Commissioner (Appeals) on 22.10.2002 after taking the certified copy of the order. It is claimed that before the first appellate authority, applicant had filed affidavit, in which it was stated that the copy of the order was not served upon the applicant and when the recovery proceeding was initiated, certified copy of the order was obtained. He submitted that before the receipt of the certified copy of the order, no other copy of the order was received. It is also stated that the applicant had no concern with the person on whom service of copy of the order has been shown by the process server. First appellate authority had rejected the appeal as barred by time. First appellate authority was of the view that the order under section 30 was served on Sri Chandra Mani Pandey employee on 14.09.2001. However, affidavit, filed by the applicant had not been considered. Against the order of first appellate authority, applicant filed appeal before the Tribunal. Tribunal has confirmed the order of first appellate authority.
Heard learned counsel for the parties.
Learned counsel for the applicant submitted that before the Tribunal, applicant has filed a certificate of the landlord, Sri Ram Ratan Rai dated 10.05.2004, in which he has certified that Chandra Mani Pandey, son of Badri Prasad Pandey was operating a tea shop at the chabutara of his house upto 30.04.2001 and subsequently, he left the chabutara. Learned counsel for the applicant submitted that the Tribunal has neither considered this certificate nor the affidavit filed before the first appellate authority. He submitted that if case of the department is that Chandra Mani Pandey was the employee of the applicant, burden lies upon the revenue to prove that Chandra Mani Pandey was the employee. He submitted that no evidence whatsoever has been placed to show that Chandra Mani Pandey was the employee of the applicant.
I have perused the order of Tribunal and the authorities below.
In my opinion, order of the Tribunal can not be sustained. Tribunal has not considered the affidavit, filed by the applicant dated 17.02.2003 before the first appellate authority and the certificate of the landlord dated 10.05.2004. Hence the order is vitiated. Tribunal should also consider that burden lies upon the revenue to prove that Chandra Mani Pandey was the employee of the applicant and whether the revenue has discharged its burden.
In the result, revision is allowed. Order of the Tribunal dated 20.05.2004 is set aside the matter is remanded back to the Tribunal to decide the appeal afresh in the light of the observation made above.
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