2014 (7) TMI 363 - HC - VAT and Sales Tax

Revision application - Procedure for filing revision - Affidavit of service - Service of notice not done properly - 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 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 involved:
1. Procedure for filing revision under Section 11(1) of U.P. Trade Tax Act, 1948.
2. Requirement of filing an affidavit of service for revision applications.
3. Consequences of failure to comply with the statutory requirements for filing a revision.
4. Justification for dismissing a revision filed by the Revenue.

Detailed Analysis:

1. The judgment discusses the procedure for filing a revision under Section 11(1) of the U.P. Trade Tax Act, 1948. It explains that the rules for filing a revision are prescribed in Chapter 27 of the High Court Rules, which also applies to proceedings under other tax acts. The revision under the U.P. Trade Tax Act is subject to the rules contained in Chapter 27, with necessary modifications and adoptions. The judgment clarifies that the procedure for filing a revision is similar to that under the Income Tax Act, 1961, with specific requirements outlined in the rules.

2. The judgment emphasizes the requirement of filing an affidavit of service for revision applications. Rule 5 of Chapter 27 of the High Court Rules mandates that an application made by an assessee must be accompanied by an affidavit of service, stating that the copy of the application has been served on the Standing Counsel. Similarly, if the revision is preferred by the Revenue, the Commissioner of Trade Tax must ensure service of the revision upon the assessee and file an affidavit of service. The rules specify the conditions for filing the affidavit of service and the timeline within which it must be submitted.

3. The judgment addresses the consequences of failing to comply with the statutory requirements for filing a revision. It notes that if the affidavit of service is not filed and the assessee is not served by the Commissioner of Trade Tax, it implies that there was no notice or opportunity given to the assessee. In such cases, where there is non-compliance with the rules and lack of service for several years, the Court may dismiss the revision for not being filed in accordance with the prescribed procedures.

4. The judgment also discusses the justification for dismissing a revision filed by the Revenue. It highlights that a revision filed by the Revenue should not be dismissed for technical reasons, but if there is a failure to effect service on the assessee and non-compliance with the statutory requirement of filing the affidavit of service, the Court may dismiss the revision. In this specific case, the Court found no justification to continue with the revision that was filed in 2007 and where the affidavit of service had not been filed. The Court concluded that the revision must be dismissed for non-compliance with the rules and lack of justification to continue the proceedings.

Overall, the judgment provides a detailed analysis of the procedural requirements for filing a revision under the U.P. Trade Tax Act, the importance of filing an affidavit of service, the consequences of non-compliance with statutory requirements, and the justification for dismissing a revision in cases of prolonged non-compliance and lack of service to the assessee.

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