This revision has been filed by the assessee under Section 11 of the U.P. Trade Tax Act for the assessment year 1996-97 against the order of the Tribunal 21.12.2001. The questions of law referred to are hereunder :-
(i) Whether the Tribunal was correct not to consider that the delay in filing the appeal was due to service of Assessment order on the ex-Accountant AJAI KUMAR who neither gave the order to Proprietor nor informed and on recovery of demand by Amin the Proprietor applied for certified copy of the order on 13.4.1998 which was received on 13.5.1998 and appeal filed on 23.5.1998 and there was sufficient causes for condoning the delay.
(ii) Whether the Tribunal was correct to hold that delay could not be condoned since the memo of appeal did not accompanied Section 5 application, ignoring that reasons for delay was mentioned in memo of appeal and separate Section 5 application was not necessary in view of decision of Gupta Bros. V/s C.T.T. 1995 UPTC 619.
(iii) Whether the Tribunal rightly dismissed the appeal without considering that court of Tribunal should take liberal approach in the matter of delay consideration.
The facts of the case are that an ex-partee order of assessment was made on 7.11.1997. The assessee filed an appeal, which was 40 days beyond time and it was not accompanied by the application under Section 5 of the Limitation Act. The appeal was dismissed on this ground on 10.3.2000. The Tribunal has upheld the order of the first appellate authority by its order dated 21.12.2000. However, considering the facts and circumstances of the case a liberal view may be taken. The assessee's first appeal may be heard on merits and in accordance with law provided the assessee files an application under Section 5 of Limitation Act, within a period of 10 days from the date of issuance of a certified copy of this order. The order of the Tribunal dated 21.12.2001 shall be kept in abeyance till then.
With the above observations, this revision is disposed of.
Order Date :- 22.1.2010 S.P.