2014 (9) TMI 71 - HC - VAT and Sales Tax

Revision application - non-compliance of requirement of Chapter 27 Rule 5(2) of High Court Rules - 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. 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 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 - revision was filed in 2008 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:
1. Confirmation of findings by appellate authorities
2. Procedure for filing revision under U.P. Trade Tax Act, 1948
3. Requirement of affidavit of service for revision applications
4. Dismissal of revision for non-compliance with rules

Analysis:

1. The judgment addresses the issue of confirmation of findings by appellate authorities. The Tribunal had confirmed the findings of the First Appellate Authority, leading to the dismissal of the appeal by the department. The judge noted that no errors of fact or law were presented by the learned Standing Counsel, and it was acknowledged that no question of law had arisen. As a result, the revision was deemed to be without merit and was dismissed.

2. The judgment delves into the procedure for filing a revision under Section 11(1) of the U.P. Trade Tax Act, 1948. It highlights the applicability of Chapter 27 of the High Court Rules, which governs the filing of applications under Section 256(2) of the Income Tax Act, 1961, to proceedings under other tax acts, including the U.P. Trade Tax Act, 1948. The rules outlined in Chapter 27, subject to modifications, apply to the filing of revisions under different tax acts.

3. The requirement of an affidavit of service for revision applications is discussed in detail. Rule 5 of Chapter 27 of the High Court Rules mandates that an affidavit of service accompany the revision application. The judgment emphasizes that if the revision is filed by the Revenue, the Commissioner of Trade Tax must ensure service upon the assessee and file an affidavit of service within a specified timeframe. Failure to comply with this requirement may result in the revision not being filed in accordance with the rules.

4. The judgment concludes by addressing the dismissal of the revision for non-compliance with the rules. Despite the revision being filed in 2008, the affidavit of service had not been filed until the date of the judgment. The judge deemed this as a clear case of non-compliance with Chapter 27 Rule 5(2) of the High Court Rules and, therefore, rejected the revision for not being filed in accordance with the prescribed rules. The decision to dismiss the revision was based on the lack of compliance with the procedural requirements outlined in the rules.