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TMI Blog2016 (5) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... sting Shri Radheshyam Carpenter, learned Senior CA and he is sick and was advised for bed-rest. Held that:- no material has been produced by the petitioners that the assessment order dated 28/02/2015 is contrary to the statutory provisions or principle of law, but looking to the huge liability against the petitioners in the interest of justice, we grant one more opportunity to the petitioners to appear through their counsel before the respondent No.2. Accordingly, the impugned order dated 23/07/2015 by which his application under Section 34 of VAT Act, 2002 has been rejected is set aside, subject to depositing 10% of the amount in question within two weeks from the date of this order and on producing the material/evidence. The learned au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sury on or before 3/04/2015 and to produce the copy of challan in Form-26 or e-receipt in proof of payment failing which the said sum of ₹ 8,66,98,847/- and ₹ 7,44,14,362/-(in W.P. No.5800/2015 and W.P. No.5801/2015) respectively shall be recovered as an arrear of land revenue. 5. The petitioners without following the alternative remedy of preferring an appeal against the Assessment Order has filed an application for review under Section 34 of the VAT Act, 2002 on the ground that the counsel who was to be present for assessment was ill. Along with the application doctor's certificate dated 1.3.2015 was also filed. As per the aforesaid certificate, Shri Radheshyam Carpenter, CA, counsel for the petitioner was suffering fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both these writ petitions be allowed and impugned action be quashed. 8. Per contra, Shri P. Bhargava, learned Dy. A.G. for the respondents/State has drawn our attention to the typed order-sheets of orders dated 29/12/2014, 31/12/2014 and 15/02/2015 in respect of proceedings of original assessment and submitted that on 28/02/2015, no one gave appearance on behalf of petitioners nor Shri Narendra Bam , CA, counsel, who was appearing on behalf of petitioners throughout the assessment proceedings as is evident from the aforesaid order-sheets at no point of time, pointed out to the Department that Shri Radheshaym Carpenter, CA, has been engaged on behalf of the petitioners and was not well or prayed for time. He further submitted that statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any dealer referred to in clause (a) of sub-section (4) of Section 20 for any period, an order is passed ex parte, the dealer may, within thirty days from the date of service of such order apply to the assessing authority to set aside the order and reopen the case and if the assessing authority is satisfied that the applicant was prevented by sufficient cause from appearing on the date fixed, he may, with a prior permission of higher authority as may be prescribed, set aside the order and reopen the case for hearing: Provided that - (i) no application for setting aside an ex parte assessment order shall be entertained unless it is accompanied by satisfactory proof of payment of the amount of tax admitted by the dealer; (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation. Thus, we are of the view that the petitioners were not prevented by sufficient cause from appearing on 28/02/2015. 12. In the case of Mahaveerprasad Jain(supra), the applicant had engaged a counsel and he failed to appear when the case was called on for hearing. The Division Bench relying on the decision of the Apex Court in the case of Rafiq v. Munshilal [AIR 1981 SC 1400] wherein the Apex Court has observed that whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. May be that the learned Advocate absented himself deliberately or intentionally, but where the parties generally appear through their Advocates, the obligation of the parties is to select his Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... producing the material/evidence. The learned authority thereafter shall consider the material produced by the petitioner and pass the order afresh on application under Section 34 of VAT Act, 2002. 15. The learned Authority is at liberty to examine the case on merit on the basis of material produced by the petitioners and decide the same in accordance with law, within a period of six weeks from the date of receipt of certified copy of this order. In case the petitioners fails to deposit the said amount, then this order passed by the court shall automatically come to an end without reference to the court and both the writ petitions shall be treated as dismissed. 16. With the aforesaid, both the writ petitions are allowed in part. No cos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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