Court No. - 59
Case :- SALES/TRADE TAX REVISION No. - 288 of 2019 Revisionist :- M/S Smt. Madhu Devi Opposite Party :- The Commissioner, Commercial Taxes U.P. Lucknow Counsel for Revisionist :- Rajeev Ranjan Tripathi Counsel for Opposite Party :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri V.K. Ojha, Advocate alongwith Sri Rajeev Ranjan Tripathi, learned counsel for the applicant-assessee and Sri B.K. Pandey, learned Standing Counsel for the respondent-revenue.
2. The present revision has been filed by the applicant against the order of the Commercial Tax Tribunal, Meerut dated 09.05.2019, arising from Defective Appeal No.09 of 2019 for A.Y. 2012-13. By that order, the Tribunal has dismissed the appeal filed by the assessee as time barred.
3. At the outset, learned counsel for the assessee submits that, on merits, the issue involved in the present revision is squarely covered by a decision of this Court in Geeta Jai Vatika Colony Vs. The Commissioner Commercial Taxes U.P. 2018 (55) GSTR 170 (All). By that decision, this Court had held that notification dated 14.11.2000 issued under Section 3-F of the UP Trade Tax Act, 1948 (hereinafter referred to as the Trade Tax Act) was not inconsistent with the UP VAT Act, 2008 (hereinafter referred to as the VAT Act), and therefore, the same stood saved under Section 81(2)(a) of the VAT Act.
4. Since the notification dated 14.11.2000 provided for exemption from taxability of the charges received from leasing out buses to UP State Road Transport Corporation, that exemption was held to be continued and available under the VAT Act, as well.
5. While the controversy on merits stands squarely decided in favour of the assessee and there is no other dispute involved in the appeal, the Tribunal has dismissed the appeal solely on account of delay of more than 400 days in filing the same.
6. As to the reason for the delay, learned counsel for the applicant submits that the assessee was not to blame. In fact the assessee had acted with due diligence and handed over the papers for filing of the second appeal to his earlier counsel. For reasons not known to the assessee, the said counsel did not file the appeal and he did not inform the assessee of such fact for a long period of time. The assessee was informed of such fact only when he enquired from his counsel, whereafter he engaged another counsel and filed the appeal. Therefore, it has been submitted that the assessee is not to blame.
7. Opposing the revision, learned Standing Counsel would submit that the long delay has not been satisfactorily explained. Merely saying that the earlier counsel did not file the appeal, would not be a sufficient explanation for such a long delay. Therefore, the Tribunal has not erred in rejecting the appeal on account of delay.
8. Having heard learned counsel for the parties and having perused the record, though, it cannot be denied that the delay is very long, however, it was within the domain of the Tribunal to have considered the explanation holistically, and thereafter decided the same.
9. It is not disputed that, in the present case, the solitary question that arose for consideration in the appeal, stood squarely decided in favour of the assessee. The State had itself exempted the transaction by issuance of notification dated 14.11.2000. The same was held to be saved under the VAT Act. Once the taxability was completely lacking, and there was no other dispute in the appeal, the Tribunal ought to have considered the question of delay in that light and may have put the assessee to terms for such delay.
10. Merely because some inadequacies have been noted in the explanation furnished by the assessee that may not lead to rejection of the explanation in entirety.
11. Keeping in mind that the disputed tax liability is about Rs.1,76,000/-, it is desirable that the delay in filing the second appeal may be condoned, subject to payment of cost of Rs.10,000/- to be deposited before the High Court Legal Services Committee at Allahabad within a period of four weeks from today.
13. Subject to proof of payment of costs being shown, the Tribunal may allot regular number to the appeal, hear and decide the same on merits, as expeditiously as possible, preferably within a period of six months from the date of proof of payment of costs being shown.
12. Accordingly, the present revision is allowed.
Order Date :- 22.8.2019 S.Chaurasia