2014 (7) TMI 445 - HC - VAT and Sales Tax

Revision application - Procedure for filing revision - filing of an affidavit of service - Service of notice not done properly - Held that - In case no such affidavit is filed and the 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. It is true that revision filed by Revenue, may not be dismissed for technical reasons, but where service has not been effected upon assessee for several years all together and Commissioner of Trade Tax apparently has failed to comply with the statutory requirement of filing affidavit of service, this Court finds no justification, still to continue with said revision to remain pending and give further opportunity to Revenue, after such a long time - This revision was filed in 2007 and till date affidavit of service has not been filed - 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.

Issues:
1. Procedure for filing revision under U.P. Trade Tax Act, 1948
2. Requirement of affidavit of service in revision applications
3. Consequences of non-compliance with filing requirements
4. Dismissal of revision filed by Revenue for technical reasons

Analysis:
1. The judgment addresses the procedure for filing a revision under the U.P. Trade Tax Act, 1948, as per Section 11(1) of the Act and Chapter 27 of the High Court Rules. It clarifies that the rules for filing an application under the Income Tax Act, 1961, are applicable with necessary modifications to proceedings under other tax acts, including the U.P. Trade Tax Act, 1948. Thus, the procedure outlined in the rules must be followed for filing revisions.

2. Rule 5 of Chapter 27 mandates the filing of an affidavit of service along with the revision application. If the revision is filed by the assessee, they must serve a copy on the Standing Counsel and file an affidavit of service. Similarly, if the revision is filed by the Revenue, the Commissioner of Trade Tax must ensure service on the assessee and file an affidavit of service. Non-compliance with these requirements can have legal implications for the validity of the revision.

3. The judgment emphasizes that failure to file the affidavit of service within the stipulated time frame can lead to the revision being considered invalid. Lack of service on the assessee deprives them of notice and an opportunity to respond, rendering the filing incomplete as per the prescribed rules. In this case, the revision filed in 2004 lacked the necessary affidavit of service, leading to its rejection by the Court.

4. Furthermore, the judgment highlights that a revision filed by the Revenue should not be dismissed for technical reasons. However, in situations where service has not been effected on the assessee for an extended period and the Commissioner of Trade Tax has not complied with the statutory requirements, the Court may reject the revision. In this instance, the Tribunal's findings were upheld, and the revision was dismissed for lack of compliance and failure to demonstrate errors in the Tribunal's decision.

In conclusion, the judgment underscores the importance of adhering to procedural requirements, including the timely filing of affidavits of service, in revision applications under tax acts. Failure to comply can result in the rejection of the revision and may impact the outcome of the case.

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