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THE COMMISSIONER, TRADE TAX versus S/S TERUPATI POWER CONE PVT. LTD.

High Court of Judicature at Allahabad

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The Commissioner, Trade Tax v. S/S Terupati Power Cone Pvt. Ltd. - SALES/TRADE TAX REVISION No. 196 of 2000 [2006] RD-AH 15649 (7 September 2006)

 

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.196 of 2000

The Commissioner, Trade Tax, U.P. Lucknow.           Applicant

Versus

S/S Terupati Power Cone Pvt. Ltd, Muzaffarnagar.                           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 28th August, 1999 relating to the assessment year, 1988-89.

It appears that the assessing authority has passed the ex-parte assessment order under section 21 (2) of the Act on 26th March, 1997. An application under section 30 of the Act was moved by the dealer for recalling of the aforesaid order. The said application was rejected on 21nd January, 1998. Against the order passed under section 21 (2) of the Act dated 26th March, 1997, dealer filed appeal no.454 of 1998 against the order rejecting the application under section 30 of the Act. Dealer filed appeal no.331 of 1998 before the Deputy Commissioner (Appeals) Trade Tax Saharanpur. Deputy Commissioner (Appeals), Trade Tax, Saharanpur vide order dated 25th January, 1999 decided both the appeals and allowed the appeal no.331 of 1998 filed against the order rejecting the application under section 30 of the Act dated 21st January, 1998. Appellate authority directed the assessing authority to reopen the case and pass assessment order afresh after giving proper opportunity of hearing and another appeal no. 454 of 1998 against the order under section 21 (2) of the Act was held infructuous and was accordingly, dismissed. It appears that the dealer filed appeal before the Tribunal against the order of the Deputy Commissioner  (Appeals) rejecting the appeal no.454 of 1998 as infructuous. Tribunal allowed the appeal and set aside the order passed under section 21 (2) of the Act.

Heard learned counsel for the parties.

Learned Standing Counsel submitted that once the appeal rejecting the application under section 30 of the Act has been allowed and the case has been reopened under section 30 of the Act and direction was given to the assessing authority to pass assessment order afresh, there was no occasion for the dealer to file the appeal against the order of the first appellate authority rejecting the appeal no. 454 of 1998 as infructuous and there was no justification on the part of the Tribunal to adjudicate the appeal and set aside the order passed under section 21 of the Act on merit. Learned counsel for the dealer has nothing to say about the argument of the learned Standing Counsel.

I find substance in the argument of the learned Standing Counsel. Once the appeal against the order rejecting the application under section 30 of the Act has been allowed and the case has been reopened under section 30 of the Act and direction was issued to the assessing authority to pass assessment order afresh, the appeal filed against the order under section 21 of the Act stood infructuous and the same was rightly rejected as infructuous. In these circumstances, there was no occasion for the dealer to file appeal before the Tribunal against the order of the Deputy Commissioner (Appeals) rejecting the appeal as infructuous. Tribunal has without application of mind decided the appeal on merit. The approach of the Tribunal is wholly unwarranted. In the circumstances, the order of the Tribunal is liable to be set aside.

In the result, revision is allowed with costs of Rs. 1000/- (One thousand). The order of the Tribunal passed in appeal no. 76 of 1999 relating to the assessment year, 1988-89 is set aside.

Dated.07.09.2006.

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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