High Court of Judicature at Allahabad
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M/S Swadeshi Papers Stores, Paper Centre, Varanasi v. The Commissioner, Trade Tax U.P. Lucknow - SALES/TRADE TAX REVISION No. 1565 of 2006  RD-AH 18332 (30 October 2006)
TRADE TAX REVISION NO.1565 OF 2006
M/s Swadeshi Paper Stores, Paper Centre,
Nichi Bagh, 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 25th July, 2006 relating to the assessment year 1995-96.
Applicant was carrying on the business of paper. The original assessment order was passed on 23.12.1997. It appears that on the basis of certain information proceeding under section 21 of the Act was initiated and in pursuance thereof, order under section 21 was passed on 21.09.2002. Applicant filed appeal before the Joint Commissioner (Appeals), Trade Tax Varanasi. Before the Joint Commissioner (Appeals) applicant challenged the proceedings under section 21 of the Act apart from the merit of the case inter-alia that the notice under section 21 of the Act was not served upon it and the entire proceeding was barred by limitation. Joint Commissioner (Appeals) vide its order dated 12.03.2003 allowed the appeal and set aside the order passed under section 21 of the Act on the ground that it was barred by limitation. First appellate authority observed that after serving the notice, approval under Proviso to section 21 (2) of the Act has been obtained from the Additional Commissioner, Grade-I, Varanasi and, therefore, raising of the issue regarding the service of notice was not justified. First appellate authority held that the order under section 21 (2) of the Act was required to be passed by 31.03.2002 and since the order was passed on 21.09.2002 it was barred by limitation. Assessing authority, thereafter, moved an application under section 22 of the Act before the Joint Commissioner (Appeals) on the ground that by mistake the period of limitation to pass the order has been taken upto 21.03.2002 and, therefore, order required rectification. Joint Commissioner (Appeals) vide order dated 30.05.2005 allowed the application under section 22 of the Act and rectified its earlier order and held that the order passed under section 21 of the Act was within time and accordingly, dismissed the appeal. Against the said order passed under section 22 of the Act applicant filed appeal no.457 of 2005 before the Tribunal. Commissioner of Trade Tax has also filed appeal no.544 of 2003 against the order dated 12.03.2003. Tribunal by the impugned order allowed the appeal of the applicant filed against the order under section 22 of the Act and held that rectification of such mistake was beyond the scope of section 22 of the Act and, accordingly, set aside the order dated 30.05.2005 passed under section 22 of the Act. Tribunal also allowed the appeal filed by Commissioner of Trade Tax filed against the order dated 12.03.2003 and remanded back the matter to the Joint Commissioner (Appeals) to decide the appeal afresh. Tribunal held that the first appellate authority has illegally observed that the issue with regard to the service of notice is not relevant, without giving the date of actual service of the notice. According to the Tribunal the date of the service of the notice is relevant for the determination whether the proceeding was barred by limitation or not. Tribunal accordingly, directed the first appellate authority to adjudicate the issue in this regard. Being aggrieved by this order, applicant filed the present revision.
Heard learned counsel for the parties.
Learned counsel for the applicant submitted that the order of the Tribunal remanding back the matter to the first appellate authority is not justified. He submitted that the order under section 21 of the Act was patently barred by limitation. I do not agree with the submission of learned counsel for the applicant. Unless it is to be adjudicated that when the notice under section 21 of the Act was issued and when it was served and when Additional Commissioner has granted the approval under the Proviso to section 21 (2) of the Act. The question of the limitation in passing the order under section 21 of the Act can not be adjudicated. The question of limitation has to be adjudicated on the basis of the date of service of the notice under section 21 of the Act. Therefore, the direction given by the Tribunal can not be said to be unjustified. Joint Commissioner (Appeals) is directed to decide the plea of the applicant that the order was barred by limitation on consideration of service of the notice and relevant provision in this regard. In case, if the first appellate authority comes to the conclusion that the order passed under section 21 of the Act was within time, first appellate authority is directed to decide the matter on merit also.
With the aforesaid observation, revision is dismissed.
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