Pelicon Bone China Pvt. Ltd. vs Commissioner of Trade Tax, U.P., Lucknow

Arun Tandon, J.—Heard learned counsel for the revisionist and learned standing counsel for the Department. The assessee before this court seeks quashing of the order of the Trade Tax Tribunal dated August 21, 2003, wherein the appeal filed u/s 10(2) of the U.P. Trade Tax Act being Appeal No. 106 of 2002 had been dismissed.

Facts in short giving rise to the present trade tax revision are as follows:

The appellant was granted eligibility certificate u/s 4A of the Act by the Divisional Level Committee, Meerut on June 16, 1995, whereby exemption from tax was allowed on the products of the appellant from October 8, 1992 to October 7, 2001, i.e., for a period of 9 years. The maximum fixed capital investment for the purpose of eligibility certificate was Rs. 62,87,325. The Commissioner, Trade Tax, received information from the Deputy Commissioner (Executive), Trade Tax, Bulandshahr, vide letter dated December 21, 2000 qua misuse of the eligibility certificate by the assessee. Accordingly, proceedings u/s 4A(3) of the Trade Tax Act were initiated by the Commissioner, Trade Tax and a show-cause notice dated September 10, 2001 was issued, wherein it was stated that the assessee was involved in sale of goods manufactured by another unit, September 24, 2001 was fixed for hearing. On receipt of the notice, an application for adjournment was made by the appellant through post, which was granted and October 15, 2001 was fixed as the date for hearing. Again an adjournment application was made on which December 17, 2011 was fixed as the date. Nobody appeared on the date so fixed on behalf of the appellant. However, a fresh notice was sent to the appellant fixing April 11, 2002 as the date. An adjournment application was made on the ground that papers relating to the seizure of the goods in question should be made available to him. This application was allowed. Papers required by the appellant were made available and September 22, 2002 was fixed. Again an adjournment application was made by the assessee on the ground of illness of counsel, which was allowed. He then made another adjournment application on the ground that copies supplied to him were not legible. This was found to be a pretext to seek adjournment because the papers were received by the advocate himself on behalf of the assessee and if the papers were not legible, he should have requested for legible copies at that time. However, the Commissioner being reasonable granted adjournment and documents as asked for were again made available to the appellant, September 29, 2002 was fixed as the date for hearing. On May 29, 2002, the assessee made another application for adjournment, which was rejected and the Commissioner, Trade Tax proceeded to pass an order cancelling the exemption certificate of the appellant after recording a categorical finding that he has misused the same by sale of products of another unit.

Not being satisfied with the order so passed by the Commissioner, the appellant filed Appeal No. 106 of 2002 u/s 10(2) of the Trade Tax Act before the Trade Tax Tribunal. Before the Tribunal also he repeated the same practice of seeking adjournment. For the purpose, adjournment applications were filed on April 28, 2003 and thereafter on July 11, 2003. The next date fixed was August 13, 2003. On the said date neither his counsel appeared nor an adjournment application was made. The Tribunal proceeded to decide the appeal under the impugned order. It found no good ground to interfere with the order of the Commissioner.

On behalf of the appellant it is contended that since the adjournment was prayed for on July 11, 2003, by means of an application sent through post, it was obligatory upon the Tribunal to have intimated the next date fixed in the matter by post, which has not been done. Therefore, the order impugned is bad. For the purpose, he placed reliance upon the judgment of this Court in the case of Kishan Lal & Sons, BKO v. Commissioner of Sales Tax, U.P. reported in [1989] UPTC 757.

The learned standing counsel in reply submits that it is not obligatory upon the Tribunal to intimate every date fixed in the matter for hearing by registered post especially once a notice of the proceedings is served upon the assessee and he puts in appearance. It is the duty of the assessee to keep track to the case and to note the next date in the matter after adjournment is granted. The Tribunal cannot be expected to pursue the proceedings on behalf of the assessee to keep the track of the assessee by sending registered notices for every date.

I have considered the submissions made by the learned counsel for the parties and have examined the records of the present trade tax revision.

The learned counsel for the appellant could not refer to any statutory provision, whereunder, after an adjournment is granted on an application made by post by the assessee it becomes the duty of the Tribunal to intimate the next date by post. It is not in dispute that the appeal was filed by the assessee himself, on 11/13th July, 2003, the appellant made an application for adjournment by post, it was his duty to have followed the case and to have obtained information of the next date fixed after his adjournment application dated 11/13th July, 2003 was granted. The appellant-assessee has been most negligent in pursuing the proceedings as is reflected from the order of the Tribunal. This court finds absolutely no good ground to interfere with the order of the Tribunal.

The present trade tax revision is accordingly dismissed. However, this order will not prejudice the rights of the appellant to make an appropriate application for recall of the ex parte order of the Tribunal, as may be permissible under law.