M/S Sri Ankur Bhattha Udyog, Muzaffar Nagar vs Commissioner Commercial, Trade Tax

Ashwani Kumar Mishra, J.—The Tribunal has rejected the second appeal of the assessee insofar as condonation of delay in filing of first appeal was concerned, on the ground that there was no explanation furnished before the First Appellate Authority. It has also been recorded that although the responsibility had been owned by the lawyer, but there was no affidavit of the lawyer on record.

Learned counsel for the revisionist, with reference to the document annexed along with memo of appeal, filed before the First Appellate Authority, states that an affidavit of Sri Sudama Kumar Garg, Advocate, existed on record, which has not been examined. It is also contended that admitted liability of tax had also been deposited along with the First Appeal. Submission is that in such circumstances the appeal filed by the revisionist was liable to have been examined on merits, instead of revisionist being shut out on the ground of delay.

Learned Standing Counsel appearing for the State points out that question as to whether affidavit did exist on record of the First Appellate Authority or not, can be examined.

From the materials placed before this Court, it is apparent that ex parte proceedings had been drawn against the revisionist in respect of assessment year 2003-04, vide order dated 16th March, 2006. It appears that a belated appeal has been preferred along with the affidavit of the counsel stating that the revisionist had instructed the lawyer to file an appeal, but for the reasons explained in the affidavit, the appeal could not be filed. The First Appellate Authority, as well as the Tribunal have not examined this aspect of the matter. The Tribunal has merely recorded that there is no evidence in support of the plea taken by the lawyer. The affidavit which is stated to be on record has neither been adverted to nor any discussion or finding is returned in that regard. Even otherwise, since the admitted amount for tax had been paid, the revisionist could have been put to terms and the matter ought to have been decided on merits. The adjudication on merits is always to be preferred over an ex parte adjudication, particularly when a plausible ground is disclosed for not filing of the appeal within time.

In the facts and circumstances of the present case, this Court is of the opinion that the Tribunal was not justified in refusing to entertain revisionist''s plea on merits, and discarding explanation submitted for belated filing of appeal. The question formulated for consideration of this Court is answered accordingly. The matter shall be placed once again before the First Appellate Authority for consideration of applicant''s claim on merits, and in accordance with law.