Case Law Details
Siddheshwar Bhandar Naveen Mandi Hardoi Vs Commissioner of Commercial Taxes (Allahabad High Court)
High Court held that learned Tribunal was clearly unjustified in deciding the second appeal on ex parte basis on the very first day of hearing and as such the order impugned is clearly vitiated due to violation of principles of natural justice.
FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT
Heard learned counsel for revisionist and learned State Counsel appearing for opposite parties.
Trade tax revision has been filed against order dated 26th April, 2008 passed in Appeal No. 470 of 2005 pertaining to assessment year 2002-03 (central). The revision had initially been admitted on 22nd October, 2008 although the questions of law have not been framed.
In the memorandum of revision, seven questions of law have been proposed pertaining not only to the merit of the assessment order but on the point that the impugned order has been passed on an ex parte basis without recording any satisfaction about service upon the revisionist.
Since learned counsel for parties admit that the issue pertaining to order passed by first appellate authority is required to be seen on merits by the second appellate authority, the issue of question of law pertaining to present revision is confined to the proposed question of law at Sl. No.5 i.e. ‘whether the learned Tribunal was justified to decide appeal filed by revenue on an ex parte basis on the very first day of hearing without adhering to the principles of natural justice?
Although the question of law has been formulated today itself but the revision is being disposed of today by consent of learned counsel for parties.
Learned counsel for revisionist submits that against the assessment order dated 3rd March, 2005 revisionist had preferred first appeal No. 209 of 2005 which was decided by means of order dated 5th April, 2005 whereby tax subjected to sale of ‘Mota Anaj’ was reduced from taxability at the rate of 4% to 2% and as such the first appeal preferred by revisionist was allowed. It is submitted that against the aforesaid order, revenue had filed second appeal No. 470 of 2005, in which the first date of hearing was fixed for 15th April, 2008 and as such second appeal was heard on the same date and thereafter decided by means of order dated 26th April, 2008 on an ex parte basis. It is submitted that no notice whatsoever was ever received by the revisionist pertaining to pendency of aforesaid second appeal due to which revisionist was unable to appear on 15th April, 2008.
Learned counsel has drawn attention to the impugned order to indicate that the fact the second appeal was decided on ex parte basis has also been indicated in the order itself.
Learned counsel appearing on behalf of revenue has refuted submissions advanced by learned counsel for revisionist with submission that order impugned clearly indicates that notice regarding pendency of second appeal had been served upon partner of firm on 27th February, 2008 and despite having notice of second appeal, when the revisionist failed to appear on the date of hearing i.e. on 15th April, 2008, the said second appeal was decided on an ex parte basis and there is no error in such a decision.
Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is apparent particularly from a reading of the impugned order that the same has been passed on an ex parte basis while recording that notices were issued to the partner of firm, Mr. Avnish Kumar and was served upon him on 27th February, 2008 fixing 15th April, 2008 as the next date of hearing and when the said person failed to appear on behalf of revisionist-respondent, the said second appeal was decided on ex parte basis.
In view of specific assertion made by revisionist that no notice whatsoever was ever served upon revisionist, a perusal of impugned order makes it evident that although it has been indicated that notice was served upon partner of firm on 27th February, 2008, the order does not indicate anywhere as to whether and by which mode the notice was issued to revisionist-respondent. The only fact indicated in the order is that notice was served upon partner of firm on 27th February, 2008 fixing 15th April, 2008 as the first date of hearing. It is also evident from the impugned order that hearing took place on the very first day of hearing and impugned order has thereafter been passed on 26th April, 2008. Evidently the order impugned is an ex parte order. In the considered opinion of this Court, the second appellate authority has clearly erred in not recording a finding as to when and by which mode notices were issued to the revisionist-respondent and how service can be said to have been effected upon the said person. Even otherwise it would have been in the interest of justice for the second appellate authority to have fixed at least another date to permit representation of revisionist-respondent in the said proceedings prior to deciding it on an ex parte basis, which has resulted in substantial injury to the revisionist-respondent.
In view of aforesaid, the question of law as formulated is answered as follows:-
The learned Tribunal was clearly unjustified in deciding the second appeal on ex parte basis on the very first day of hearing and as such the order impugned is clearly vitiated due to violation of principles of natural justice.
Consequently the revision is allowed setting aside the impugned order dated 26th April, 2008 passed by Appellate Trade Tax Tribunal, Bench-III, Lucknow in Appeal No. 470 of 2005 pertaining to assessment year 2002-03 (central). Parties to bear their own costs.
The dispute is remanded for re-consideration to the Appellate Trade Tax Tribunal, Lucknow for decision afresh in Appeal No. 470 of 2005 on merits. Since the revisionist-respondent has already represented before this Court, notice upon the revisionist-respondent is deemed sufficient. The parties shall appear before the Tribunal on 17th March, 2023. The appeal itself may be decided expeditiously, preferably within a period of four months from 17th March, 2023 in case there is no other legal impediment.
Order Date :- 17.2.2023
