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S/S New Vijay & Co v. The Commissioner, Trade Tax, U.P., Lucknow - SALES/TRADE TAX REVISION No. 642 of 2004  RD-AH 3525 (24 September 2005)
Trade Tax Revision no. 642 of 2004.
S/S New Vijay & Company Vs Commissioner, Trade Tax ,Lucknow.
Hon'ble Rajes Kumar, J
Present revision under section 11(1) of the U.P Trade Tax Act (herein after referred to as "the Act") is directed against the order of Tribunal dated 18.12.2003 relating to assessment year 1986-87. The Tribunal vide order dated 23.04.2001 decided Second Appeal no.76 of 1992 ex-parte filed by the Commissioner of Trade Tax without hearing the revisionist. The revisionist moved an application on 09.05.2001 for recalling of the aforesaid ex-parte order on the ground that the notice of hearing was not served upon it. The Tribunal vide order dated 18.12.2003 rejected the application and refused to recall the ex-parte order dated 23.04.2001.
Heard learned counsel for the parties.
Learned counsel for the revisionist submitted that in the firm there were two partners, namely, Ajay Kumar Agarwal and Vinay Narain Singh. He submitted that as per order of the Tribunal, notice was served on Sri Ram Prasad Singh, who was the nephew of Chandra Shekhar Singh. Sri Chandra Shekhar Singh was working as a Manager of the klin and since Sri Ram Prasad Singh was residing with Chandra Shekhar Singh, therefore, Tribunal held that the service on Ram Prasad Singh is sufficient. Learned counsel for the revisionist submitted that the service on Sri Ram Prasad Singh, nephew of Chandra Shekhar Singh can not be said to be proper service in accordance with Rule 77 of U.P. Trade Tax Rules. I find force in the argument of learned counsel for the revisionist. Rule 77 (1)(a) reads as follows:
"by giving or tendering a copy thereof to the dealer or person concerned or to his manager, munim, accountant or agent, or to one of his employees or to any adult member of his family residing with him."
Admittedly, the service was not made on the dealer or person concerned or to a manager, munim, accountant or agent, or to any employee. It appears that the Tribunal treated the proper service of the notice on Sri Ram Prasad Singh, nephew of Sri Chandra Shekhar Singh on the ground that he was residing with Sri Chandra Shekhar Singh, Manager of the klin. This view of the Tribunal is not correct. The "word" to any adult member of his family residing with him is referable to the dealer and not to the manager, munim, accountant, agent or employee. Admittedly, Sri Ram Prasad Singh was not the member of the family of the dealer, nor he was manager, munim, accountant, agent or employee or person concerned. Therefore, the service on Sri Ram Prasad Singh was not proper.
In the result, the revision is allowed. The order of the Tribunal dated 18.12.2003 is set aside. The application for recall of the order dated 23.04.2001 is allowed and the ex-parte order dated 23.04.2001 passed in second appeal no.76 of 1992 for the assessment year 1986-87 is set aside and recalled. Tribunal is directed to decide the second appeal no.76 of 1992 afresh after giving proper opportunity of hearing to the revisionist. The revisionist will appear before the Tribunal on 25.10.2004. On that date, either Tribunal hear the appeal or give any further date of hearing. The Tribunal is not required to give any fresh notice to the revisionist.
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