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TMI Blog2009 (11) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... f kirana and dry fruits, etc. Ex parte assessment orders were passed under the U.P. Trade Tax Act for the assessment years 2000-01, 2001-02 and 2002-03 by the assessing authority. Applications to set aside the ex parte assessment orders were dismissed. The matter ultimately travelled to the Tribunal in second appeals, being Second Appeal Nos. 262, 263 and 264 of 2004, for all three assessment years. The Tribunal by its common judgment and order dated January 6, 2005 allowed all the three appeals on the finding that the petitioner was prevented by sufficient cause and could not participate in the assessment proceedings. It consequently allowed the applications filed under section 30 of the Act and set aside the ex parte assessment orders on the finding that the petitioner could not appear in the assessment proceedings as well at the time of hearing of the applications for setting aside ex parte assessment orders on the ground of his illness. The matter was restored back to the assessing authority with direction to reframe the assessment orders after giving opportunity of hearing to the petitioner. The petitioner, armed with the order of the Tribunal, approached the assessing authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner on June 23, 2005. On June 25, 2005, an adjournment application was filed before the assessing authority on the ground that he wants to get his case transferred to another assessing authority and the matter was adjourned. On June 27, 2005 another notice was issued to the petitioner directing him to submit the details of the steps taken for getting his case transferred, fixing July 6, 2005. None appeared on that date. Thereafter, the matter was taken up on July 11, 2005 and again a notice was issued for appearance, fixing July 25, 2005. On July 25, 2005, Subhas Chandra Gupta, authorised representative appeared and prayed for adjournment on the plea that he is taking steps to get the case transferred but could not produce any evidence to show that any such transfer application was filed by the petitioner. On the said date, an application (annexure CA6) was filed stating that he has already applied for transfer of the case to the Commissioner, Trade Tax for transferring his case and requested that the assessing authority should extend full cooperation in transferring the cases. The assessing authority thus stayed his hands awaiting the disposal of the transfer application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Elaborating the arguments, the learned counsel submits that in the present case, as held in the case of Minakshi Udyog, Agra [2005] UPTC 143 (All)[FB], the period of limitation, as provided under section 21(5) of the Act, would be applicable. An application dated January 11, 2005 annexing copy of the order of the Tribunal was filed before the assessing authority and the assessing authority on January 17, 2005 issued the order withdrawing the recovery certificate, the period of limitation would start running from January 17, 2005. The assessment orders could have been passed within six months therefrom. The assessing authority is wrong in saying that period of six months will begin to run from March 7, 2005, when copy of the order of Tribunal was served on him. The learned standing counsel, on the other hand, submits that sub-section (4) of section 21 of the Act will be applicable and not its sub-section (5). In other words, he submits that the assessment orders are passed within period of limitation of one year, as provided under sub-section (4) of section 21 of the Act. Secondly, the period of limitation would start running from March 7, 2005 when a copy of the order of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate. This point has also been considered in paragraphs 18 and 19 of the aforestated decision by Full Bench. For the sake of convenience, paragraphs 18 and 19 are reproduced below: 18. As regards the question as to from what date the limitation period will run, in our opinion if the parties or counsels were present before the appellate authority when he passed his order then the limitation will run from the date of the order, but if they came to know about the order only subsequently it will run from the date of service of the order or knowledge of the order whichever is earlier. 19.. This view is in accordance with the decision of the Supreme Court in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer AIR 1961 SC 1500. In the present case admittedly the appellate order dated December 13, 1993 was served on the assessing authority on January 11, 1994, and hence the said authority certainly knew about the appellate order on January 11, 1994. Hence in this case the limitation period for making the assessment had clearly expired. From the above quotation, it would appear that if the parties or counsels were present before the appellate authority when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act on the same pretext. However, he succeeded before the Tribunal. The Tribunal took a liberal view of the matter and granted one indulgence by restoring the matter back to the assessing authority. The petitioner failed to appreciate the latitude and leniency extended by the Tribunal in its correct perspective and inspite of service of notice failed to file any reply to the show-cause notice issued by the assessing authority after remand by the Tribunal. He took a strange stand that he wants the cases to be transferred to some other authority. The assessing authority was certainly in dilemma. The assessing authority had no option but to adjourn the case as per wishes of the petitioner. It is admitted fact that the notice was served on the petitioner and he did not file any reply and took somersault that he is seeking transfer of the case by filing transfer application before the Commissioner, Trade Tax. Hearing of the case was adjourned on the request of the petitioner from time to time, to accommodate him. Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that the parties do not resort to dilatory tactics but seek their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case. The petitioner has not disclosed the full facts in the writ petition. Filing of successive adjournment applications and getting the case adjourned has not been disclosed. In paragraphs 15, 16 and 17 of the writ petition it has been stated that the petitioner made an application before the Commissioner, Trade Tax for transfer of the cases for the aforesaid assessment years from the jurisdiction of respondent No. 1 to some other officer which was ultimately rejected on August 25, 2005. It has been stated in paragraph 17 of the writ petition that from the date of filing transfer application and till the date of its disposal by the Commissioner of Trade Tax, the Commissioner of Trade Tax had not stayed the assessment proceedings before respondent No. 1. But the petitioner has not disclosed the fact that he was instrumental in getting the assessment proceedings adjourned by filing the adjournment applications before the authority concerned. The date of filing of transfer application has also not been disclosed. The petitioner is guilty of not disclosing the true and correct facts and has tried to mislead the court. The conduct of the petitioner in not extending his cooper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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