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M/S Nawab Brick Field v. The Commissioner Of Trade Tax U.P. Lucnow - SALES/TRADE TAX REVISION DEFECTIVE No. 15 of 2006 [2006] RD-AH 1851 (24 January 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).




M/s Nawab Brick Fields. ....Applicant


The Commissioner of 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 09.08.2005 for the assessment year 1999-2000, by which Tribunal has rejected the appeal as barred by limitation.

Brief facts of the case are that against the order dated 03.03.2003 passed by Joint Commissioner (Appeals), Trade Tax Agra, applicant  filed appeal before the Tribunal on 19.05.2005. The said appeal was reported  beyond time by 646 days. It was alleged that the order of Joint Commissioner (Appeals), Trade Tax Agra was served on one Shri Ram Sewak, peon on 16.05.2003. Applicant claimed that there was no employee in the name of Shri Ram Sewak, peon in his kiln and the order of Joint Commissioner (Appeals), Trade Tax Agra was not served upon him and when Kurk Amin approached the applicant on 02.05.2005 for the recovery of the dues, applicant came to know about the order and applied for certified copy of the order, which was received on 03.05.2005. It appears that it has also been reported that the signature of the applicant as Shri Ranbeer Singh defers from the signature mentioned in other papers and no signature has been made on the verification part of the memo of appeal. Applicant has also filed the application under section 5 of the Limitation Act for the condonation of delay. Tribunal rejected the appeal as barred by limitation and also observed that verification part of the memo of appeal was not signed by Shri Ranbeer Singh.  Tribunal held that the order was served upon Shri Ram Sewak, peon and the applicant could not produce any evidence in respect of denial.

Heard learned counsel for the parties.

With the consent of the parties, present revision is being disposed of at the admission stage.

I have perused the order of the Tribunal.

In my opinion, order of Tribunal is not sustainable. It is settled principle of law that the burden lies upon the revenue to prove the proper service of the order in accordance to Rule 77 on the dealer. It is not in dispute that the revenue claimed that the order was served on one Shri Ram Sewak, peon and applicant denied to have any such employee. Thus, on denial being made by the applicant that there was no peon named as Shri Ram Sewak, burden lies upon the revenue to prove that Shri Ram Sewak, peon was the employee of the applicant but record shows that no such evidence has been adduced. In the circumstances, service of the order can not be said to be proper service on the applicant in accordance to Rule 77. The date of issue of the certified copy should be treated as the date of service of the order and the appeal filed from such date should be treated as within time. The other defect referred by the Tribunal that no signature was made on the verification is curiable. On the opportunity being given to the applicant, such defect can be cured. Tribunal is directed to provide opportunity to the applicant to cure the defect and get the signature on verification part of the memo of appeal.

In the result, revision is allowed. Order of the Tribunal is set aside and the matter is remanded back to the Tribunal to treat the appeal filed on 19.05.2005 within time and provide opportunity to the applicant to cure the defect in the memo of appeal and, thereafter, decide the appeal on merit in accordance to the law.




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