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M/S HINDON ISPAT LIMITED versus COMMISSIONER TRADE TAX, U.P. LUCKNOW

High Court of Judicature at Allahabad

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M/S Hindon Ispat Limited v. Commissioner Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 1034 of 2006 [2006] RD-AH 15687 (8 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.1034 OF 2006

M/s Hindon Ispat Limited.       ....Applicant

Versus

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 15th July, 2006 relating to the assessment year 1991-92.

Brief facts of the case giving rise to the present revision are that applicant is a company incorporated under the Indian Companies Act, 1956, carrying the business of manufacture and sale of rolling materials. It was holding recognition certificate under section 4-B of the Act. Assessing authority initiated the proceeding under section 4-B (5) of the Act on the ground that applicant had used raw material for the purposes other than for which recognition certificate was issued, and, therefore, liable for penalty. Applicant did not file any reply to the show cause notice and also did not participate in the proceeding and, therefore, ex-parte order under section 4-B (5) of the Act was passed  on 19th January, 1998 levying the penalty at Rs.4,44,500/-. Admittedly, the said order was served on the employee of the applicant on 3rd December, 1998. Against the said order, appeal was filed before the Joint Commissioner (Appeals) on 3rd December, 2005 after the delay of seven years and 255 days alongwith application under section 5 of the Limitation Act. The said application was rejected and the appeal was rejected as barred by limitation. Against the said order of the first appellate authority, applicant filed second appeal before the Tribunal, which too has been rejected by the impugned order. Aggrieved by the impugned order, present revision has been filed.

Heard Sri N.C.Gupta, learned counsel for the applicant and Sri B.K. Pandey, Learned Standing Counsel.

Learned counsel for the applicant submitted that a detailed explanation for the delay was given before the first appellate authority and, therefore, the delay should have been condoned. He submitted that in the matter of condonation of delay, a liberal and pragmatic view should be taken and not pedantic. In support of his contention, he placed reliance upon the decision of the Apex Court in the case of Collector, Land Acquisition Vs. Mst. Katiji and others, reported in 1987 UPTC, 2128, and this Hon'ble Court in the case of Padam Sen Agarwal Vs. CST, reported in 1983 UPTC, 1135. This Court condoned the delay for five years, which was caused on account of non-information about the result of the appeal by the counsel of the dealer and by the department. He submitted that in the case of M/s Ross Murarka Finance Limited, Ghaziabad Vs. The Commissioner of Trade Tax U.P., Lucknow, reported in NTN 1995 Allahabad High Court, 528, this Court condoned the delay on the fact that assessment order was served on the employee of the company, who neglected to pass it to the concerned officer and when the recovery proceeding was initiated, company took the steps and filed the appeal immediately. He also relied upon decision in the case of M/s Gupta Brothers & Company, Kanpur Vs. Commissioner of Trade Tax, Uttar Pradesh, Lucknow, reported in STI 1995 Allahabad High Court 462, in which on the receipt of the ex-parte assessment order, application under section 30 of the Act  was filed and after the rejection of application under section 30 of the Act, appeal was filed. This Court took the view that since the dealer was prosecuting the case bonafidely. The delay caused during the period has been condoned. He also relied upon the decision in the case of Kalatmak, Shikohabad Vs. The Commissioner of Trade Tax, U.P., Lucknow, reported in 2004 (36) STJ, 311, in which, order was served on one Shri Rajiv Paliwal, who was not the partner of the firm and then delay caused in filing the revision has been condoned. Learned Standing Counsel submitted that the present is the case of gross negligence, thus, applicant does not deserves any sympathy.

Having Heard learned counsel for the parties, I have perused the order of Tribunal and the authorities below.

Let us examine the explanation given by the applicant for the condonation of delay. Admittedly, the order was served upon one of the employee of the company on 31st February, 1998 and there is no dispute in this regard. Therefore, there was a valid service of the order on the company in accordance to Rule 77 of U.P. Sales Tax Rules.  It is alleged that the employee was temporary employee and after receiving the order left the service and could not inform about the order to the applicant. In the month of April/May, 1998, Shri Rajesh Agarwal, one of the director of the company came to know about the order when the recovery amin approached him, he was suffering from heart decease and when he got some relief on 3rd December, 1998, application under section 30 of the Act was moved on 4th December, 1998. Application under section 30 of the Act was rejected by the assessing authority on 14th February, 1999, which was served on the counsel of the applicant, Shri Amitabh Tiwari on 17th March, 1999, which was provided to the applicant by the said counsel on 22nd March, 1999. Thereafter, the papers etc. were given to one Shri Navin Chandra Pandey, Advocate for filing of the appeal. It is submitted that due to continuous illness, applicant could not approach the counsel and subsequently, came to know that Shri Navin Chandra Pandey, Advocate left the Ghaziabad in the year 2004 and thereafter, came to know through Chartered Accountant that no appeal was filed. Then on 9th July, 2005 an application was moved for the inspection of the record and record was provided for inspection in the month of November, 2005 and, thereafter, application was given for the certified copy of the order, which was provided on 1st December, 2005 and thereafter, appeal was filed on 3rd December, 2005. On these facts, Tribunal held that the applicant could not substantiate its claim by adducing any evidence. No evidence has been adduced about the payment of salary etc. and leaving of the service by Shri Anil Kumar Garg, the employee on whom the order was served on 19th January, 1998. No evidence has been adduced for such a long illness of Shri Rajesh Agarwal. No evidence has been filed that when the order passed under section 30 of the Act was served on Shri Amitabh Tiwari, Advocate, why file was given to Shri Navind Chandra Pandey, Advocate. No evidence has been adduced about the payment of fee and expenses etc. and the entries of such payment in the books of account. On these facts, it has been held that the explanation is a concocted story of the applicant.

I have given my deepest consideration on the explanation given by the applicant for the condonation of delay. It is true that in the matter of condonation of delay, liberal and pragmatic view should be taken and the approach of the Court should be a justice oriented approach but the Court can not give the relief to the applicant for his own negligence. The court can not allow the benefit to the person who is not vigilant about his own rights and commit gross negligence.

In the present case, the facts of the case shows that the applicant was not vigilant about his rights and was not careful. One can understand the explanation of the applicant upto February, 1999, some reasonableness about the explanation of the applicant upto March, 1999. Order rejecting the application under section 30 of the Act was served on 17th March, 1999 but the explanation for five years thereafter, can not be said to be sufficient explanation by any stretch of imagination.  It is beyond the understanding of a prudent man. In my opinion, it is the case of gross negligence and not a bonafide act and, therefore, delay in filing the appeal is not liable to be condoned. The decisions cited by learned counsel for the applicant are based on facts of that case and thus are not applicable to the present case.

In the result, revision fails and is accordingly, dismissed.

Dt.08.09.2006

R./


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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