2024 (7) TMI 1070 - HC - VAT and Sales Tax

Rejection of application of recall of the order - assessment year 2009-2010 - application has been made after a period of 7 years without considering the reasons stated by the petitioner for filing the delay application for rectification - non-application of mind - violation of principles of natural justice - HELD THAT - In the present case, it is abundantly clear that none of the grounds raise even considered by the Tribunal and therefore the impugned order suffers for non-application of mind and accordingly arbitrary. This aspect of the matter has already been decided by coordinate Bench of this Court in the case of M/s Ram Sewak Coal Depot 2003 (2) TMI 457 - ALLAHABAD HIGH COURT , where it was held that ' it is held that the Trade Tax Tribunal has jurisdiction to set aside an ex parte order and re-hear the matter. There being no express provision to that effect does not inhibit the Tribunal in any manner to recall the said judgment.' In the present case also the petitioner has also taken the ground that he was never communicated the order passed by the Tribunal and therefore he was never aware about the order dated 16.03.2017 and it is only on the initiation of the recovery proceedings he came to know about the said order and accordingly he moved an application for rectification which is accordingly rejected by impugned order dated 30.03.2024. The impugned orders suffer from non-application of mind inasmuch as the ground taken by the petitioner have not been considered and dealt with accordingly the impugned order dated 30.03.2024 is set aside. The matter is remitted to the Commercial Trade Tax Tribunal to decide the application of the petitioner afresh in accordance with law - revision allowed by way of remand.

Summary

Issues:
Application for recall of order rejected by Commercial Tax Tribunal - Non-service of order dated 16.03.2017 - Grounds for delay in filing rectification application - Non-consideration of grounds by Tribunal - Jurisdiction of Tribunal to set aside ex-parte order - Application for rectification rejected without proper consideration - Impugned order dated 30.03.2024 set aside - Matter remitted to Commercial Tax Tribunal.

Analysis:
The revisionist challenged the order of Commercial Tax Tribunal rejecting the application for recall of the order dated 16.03.2017. The revisionist contended that he was unaware of the order as it was not served upon him, and upon discovering it during recovery proceedings, he applied for rectification, citing non-receipt of the order as the reason for delay. The Tribunal rejected the application solely based on the delay without considering the reasons provided by the revisionist, leading to the revisionist seeking relief through the present revision.

The revisionist argued that the Tribunal's failure to communicate the order violated Rule 63(7) of U.P. VAT Rules, justifying the delay in filing the rectification application. Citing the Supreme Court and Allahabad High Court judgments, the revisionist emphasized the Tribunal's duty to provide a fair hearing and the power to set aside ex-parte orders. The revisionist's plea was that the Tribunal did not apply its mind while rejecting the application, thereby rendering the impugned order arbitrary and non-compliant with legal principles.

The High Court acknowledged the undisputed facts of the case, including the reduction of tax liability in the first appeal and the ex-parte decision in the second appeal. It emphasized the necessity for the Tribunal to consider the grounds raised by the revisionist for the delay in filing the rectification application. Referring to precedents, the Court highlighted the Tribunal's jurisdiction to set aside ex-parte orders and conduct a fair hearing, underscoring the importance of considering sufficient cause for absence in legal proceedings.

Consequently, the High Court set aside the impugned order dated 30.03.2024, directing the matter to be reconsidered by the Commercial Tax Tribunal in accordance with the law. Emphasizing expeditious resolution, the Court instructed the Tribunal to decide the application within three months of receiving a certified copy of the order. The revision was allowed, with the petitioner undertaking to cooperate in the proceedings before the Tribunal, ensuring a fair and just resolution of the matter.