2014 (9) TMI 902 - HC - VAT and Sales Tax

Revision petition - affidavit of service giving facts as stated in Rule 5(1) of High Court Rules not served - Held that - Affidavit of service has to accompany revision application, but proviso to sub Rule 2 provides, that, if due to lack of time or for any other sufficient reason, affidavit of service is not accompanying the application filed by Commissioner of Trade Tax, such affidavit must be filed within three weeks' of the date of institution of application. Therefore, a revision would be treated to be validly filed by an assessee if it is accompanied by affidavit of service, but in case of revision filed by Commissioner of Trade Tax, affidavit of service must accompany revision, but for valid reasons, this condition would stand dispensed with, but, the affidavit of service then, must be filed within three weeks' of the date of institution of application. - In case no such affidavit is filed and assessee is not served by Commissioner of Trade Tax, meaning thereby there is no notice or opportunity to the assessee and revision has not been filed in the manner prescribed in the Rules. - This revision was filed in 2010 and till date affidavit of service has not been filed. In my view, it is fit case where this Court must reject revision having not been filed in accordance with rules and for non-compliance of requirement of Chapter 27 Rule 5(2) of High Court Rules. - Decided against Revenue.

Summary

Issues:
- Tribunal's findings of fact and error of law
- Procedure for filing revision under U.P. Trade Tax Act, 1948
- Requirement of affidavit of service for revision application

Analysis:
1. The High Court reviewed the Tribunal's findings of fact and the argument presented by the learned Standing Counsel for the Revisionist. The Court noted that no errors of fact or law were demonstrated to challenge the Tribunal's decision. As no legal questions arose, and the Tribunal's findings were based on facts, the revision was deemed to be dismissed.

2. The Court delved into the procedure for filing a revision under Section 11(1) of the U.P. Trade Tax Act, 1948. Referring to Chapter 27 of the High Court Rules, it was highlighted that the rules for filing an application under Section 256(2) of the Income Tax Act, 1961 could be applied with modifications to proceedings under other Tax Acts, including the U.P. Trade Tax Act. Therefore, the rules from 1 to 19(B) were deemed applicable for filing revisions under the U.P. Trade Tax Act.

3. Rule 5 of Chapter 27 of the High Court Rules necessitates the filing of an affidavit of service along with the revision application. The rule outlines the conditions for the affidavit, specifying that if the revision is filed by the assessee, service must be made on the Standing Counsel, and if filed by the Revenue, service must be ensured on the assessee. The Court emphasized the importance of the affidavit of service in the revision process.

4. The Court further elaborated that if the revision is filed by the Revenue, and due to reasons like lack of time, the affidavit of service is not initially filed, it must be submitted within three weeks of the application's institution. Failure to file the affidavit within this timeframe could lead to the revision not being validly filed, especially if the assessee is not served by the Commissioner of Trade Tax, indicating non-compliance with the statutory requirements.

5. In the case under review, the Court noted that the revision was filed in 2010, yet the affidavit of service had not been submitted till date. Considering the prolonged lack of compliance with the rules and the absence of service on the assessee, the Court decided to reject the revision for not adhering to the prescribed procedures and for the non-compliance with Chapter 27 Rule 5(2) of the High Court Rules.

6. Consequently, the Court dismissed the revision, emphasizing the importance of complying with the rules and procedures for filing revisions under the U.P. Trade Tax Act, 1948.