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Shri Baidya Nath Ayurved Bhawan (P.) Ltd. Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Limitation
CourtAllahabad High Court
Decided On
Case NumberSales Tax Reference No. 234 of 1971
Judge
Reported in[1973]32STC317(All)
AppellantShri Baidya Nath Ayurved Bhawan (P.) Ltd.
RespondentCommissioner of Sales Tax
Appellant AdvocateB.L. Gupta and ;R.K. Gulati, Advs.
Respondent AdvocateStanding Counsel
Excerpt:
- - the assistant commissioner (judicial) held that inasmuch as the demand notice and the copy of the assessment order were served on the assessee on 22nd september, 1966, the appeal, which was filed on 3rd november, 1966, was clearly barred by time......(a) whether, upon the facts and in the circumstances of the case, the record which the additional judge (revisions) could take into consideration under 10(3) of the act. includes the notes of arguments recorded by the assistant commissioner (judicial) during the hearing of the appeal ?(b) if so, whether the oral request, recorded in the note made therein, for condonation of delay can be taken into consideration as an application under 5 of the limitation act, for condoning the delay in filing the appeal ?(3) whether, upon the facts and in the circumstances of the case, the finding of the additional judge (revisions) is right in law that no application for condoning the delay in filing the appeal was made before the assistant commissioner (judicial) ?(4) whether, upon the facts and in.....
Judgment:

Satish Chandra, J.

1. The Additional Judge (Revisions), Sales Tax, Agra, has referred the following questions of law for the opinion of this court:

(1) Whether, upon the facts and in the circumstances of the case, the period of limitation, for filing an appeal is affected by the circumstance that the assessment Order and the notice of demand mentioned incorrectly the amount of tax already deposited ?

(2) (a) Whether, upon the facts and in the circumstances of the case, the record which the Additional Judge (Revisions) could take into consideration under 10(3) of the Act. includes the notes of arguments recorded by the Assistant Commissioner (Judicial) during the hearing of the appeal ?

(b) If so, whether the oral request, recorded in the note made therein, for condonation of delay can be taken into consideration as an application under 5 of the Limitation Act, for condoning the delay in filing the appeal ?

(3) Whether, upon the facts and in the circumstances of the case, the finding of the Additional Judge (Revisions) is right in law that no application for condoning the delay in filing the appeal was made before the Assistant Commissioner (Judicial) ?

(4) Whether, upon the facts and in the circumstances of the case, the Additional Judge (Revisions) is right in holding that he had no power to condone the delay in filing the appeal dismissed as barred by time by the Assistant Commissioner (Judicial) ?

2. For the assessment year 1962-63, the Sales Tax Officer passed an assessment Order assessing the turnover of the assessee at Rs. 50,00,000 and holding it liable to pay sales tax at Rs. 1,00,000. Aggrieved, the assessee filed an appeal on 3rd November, 1966. At the hearing of the appeal it was argued on behalf of the department that the appeal was barred by time. The Assistant Commissioner (Judicial) held that inasmuch as the demand notice and the copy of the assessment order were served on the assessee on 22nd September, 1966, the appeal, which was filed on 3rd November, 1966, was clearly barred by time. He repelled the contentions raised on behalf of the assessee that the service was not proper or that the notice of demand did not show the correct amount of tax due from the assessee. He held that the latter ground was not material for deciding whether the appeal was in time or not. Accordingly, the appeal was dismissed as barred by time.

3. The assessee went up in revision. At this stage he appears to have moved a written application for condonation of the delay. This application was rejected on the ground that no such application was moved before the Assistant Commissioner (Judicial) and that, in revision such an application could not be entertained for the first time. The revision was dismissed. Thereafter, the assessee filed an application for rectification of the revisional Order on the allegation that at the hearing of the appeal the counsel appearing for the assessee had made an oral request for the condonation of delay in filing the appeal and the finding of the revisional authority that no such prayer was made at the appellate stage was erroneous on the face of the record, The Judge (Revisions) dismissed this application on the ground that primarily a written application for the condonation of delay was in law required and so an oral request was not sufficient. Thereafter, the assessee moved an application under 11(1) of the U. P. Sales Tax Act. In these facts and circumstances, the questions mentioned above have been referred to this court.

4. In respect of the first question the position is that an appeal lies under 9 of the U. P. Sales Tax Act within 30 days from the date of service of the Order of assessment. The first proviso to 9 states that no appeal against an assessment Order shall be entertained unless it is accompanied by a satisfactory proof of the payment of the amount of tax admitted by the appellant to be due, or such instalments thereof as may have become payable. It appears that in the assessment Order it was mentioned that the assessee had made deposits to the tune of Rs. 52,693.03 only. The case of the assessee is that he had in fact made deposits to the tune of Rs. 73.028.29 and that in this respect the assessment Order was incorrect. The demand notice made a demand of Rs. 20,000 in excess. So far as the first question is concerned, the amount of tax may have been incorrectly mentioned in the assessment Order and the notice of demand, yet the proviso to 9 does not require that the Order or the notice of demand should mention the amount of tax found to be due correctly. All that it requires is that the memorandum of appeal should be accompanied by a satisfactory proof of the payment of the amount of tax admitted by the appellant to be due, The appellant was at liberty to file the requisite proof along with the memorandum of appeal. The error, if any, in the body of the assessment Order could constitute as a ground for an appeal, but in our opinion, it would have no effect whatsoever in the computation of the period of limitation for the appeal.

5. We would answer the first question in the negative.

6. Upon question No. (2) (a) the position is that before the Judge (Revisions) the assessee made an application stating that he had made an oral prayer for condonation of delay before the Assistant Commissioner (Judicial). To verify this fact, the Judge (Revisions) summoned the register of arguments maintained by the Assistant Commissioner (Judicial). From the Order passed by the Judge (Revisions), it is clear that he found a note in the margin of the said register to the effect that an oral request was made for the condonation of the delay before the Assistant Commissioner (Judicial). The Judge (Revisions) in his Order characterised this note as doubtful. But since there is no clear finding holding the note not to be genuine, we proceed on the assumption that the note was to the effect that the counsel appearing for the assessee made an oral request for the condonation of the delay. Along with the statement of the case submitted to this court, the Judge (Revisions) has not appended the extract of the aforesaid register of arguments, However, in his Order he has said that his predecessor had observed that he had summoned the register where 'there was a note on the margin in red ink which by a very generous use of imagination could be stretched to mean that the request for condonation of delay was made orally'. Since that register is not before us we are unable to say anything definite in regard to the note in the register of arguments maintained by the Assistant Commissioner (Judicial). Had the register been annexed with the statement of the case, that would have shown as to what arguments were advanced by the learned counsel for the parties at the hearing of the appeal. Such record could have constituted a part of the judicial record in the case and could have been taken into consideration as such.

7. We would answer question No. (2)(a) in the affirmative.

8. Question No. (2)(b) raises a question whether a simple oral prayer for the condonation of delay could be treated as an application under Section 5 of the Limitation Act. Learned counsel for the assessee invited our attention to Mt. L Kulsoomun Nissa and Anr. v. Noor Mohammad alias Sultan Haidar and Anr. : AIR1936All666 for the proposition that an oral request can be entertained for condoning the delay. In our opinion, this case is no authority for the proposition. In that case the name of one of the defendants was omitted from the decree. Consequently, the memorandum of appeal did not include him as a party. Subsequently, the decree of the trial court was amended and the name of that defendant was added to the decree. Then, within 30 days the memorandum of appeal was amended by the introduction of the name of that defendant. The appeal was, however, dismissed on the ground that no formal application under Section 5 of the Limitation Act was made. This court held that the party having been impleaded within 31 days of the substitution of his name, the lower appellate court should have allowed the defendant to get round the technical objection of the absence of a formal application for extension of time. In any event there is no observation in this case to suggest that even an oral request would be sufficient for the condonation of the delay or that such an oral request was in law sufficient.

9. For the assessee reliance was also placed upon a decision of the Punjab High Court in Firm Kaura Mal v. Firm Mathra Dass . In that case, it was held that merely because there was no written application filed by the appellant that could not constitute a sufficient ground for refusing him the relief, if otherwise he is entitled to it. The procedure is meant for advancing and not for obstructing the cause of justice and if the, entire material is on the record, it cannot promote the ends of justice if that material is ignored and the relief is refused to the appellant, merely because he has not claimed it by means of a formal application in writing or if a formal affidavit was not filed. The language of Section 5 of the Limitation Act also does not provide that an application in writing must be filed before relief under the said provision can be granted. This case is equally unhelpful to the assessee. This case would show that if the material upon which the party relied for the relief of the condonation of delay is on the record then the court ought to apply its mind to it and refusal to do so simply on the ground that no written application in that behalf has been filed' would not advance the ends of justice. This authority will not be applicable to a case where on the record there is no material upon which a judicial tribunal can grant relief of condonation of delay. If a party seeking the condonation of delay does not bring on the record all the necessary material, but contents itself by making an oral request for the condonation of delay then this authority does not help and we would hold that in this situation a mere oral request was insufficient and could not be treated as an application under 5 of the Limitation Act.

10. We would answer question No. (2)(b) in the negative.

11. Question No. (3) is rather obscure. The Judge (Revisions) had emphasised that there was no written application. This has not been disputed. If question No. (3) means to suggest that the Additional Judge (Revisions) held that there was no oral application for condoning the delay before the Assistant Commissioner (Judicial), we would hold that the Judge (Revisions) has nowhere recorded any such finding. At one place he has in a passing observation said that the note was doubtful. That by itself is not sufficient to hold that there was no oral application.

12. We would answer question No. (3) in the negative.

13. In respect of question No. (4) the relevant facts are that no written application had been made. There was no material on the record in support of the fact that there was any sufficient cause for the delay. Under the circumstances, the Judge (Revisions) was justified in holding that an oral request for condonation of delay was not enough and that an application had to be made in writing. The fact that the assessee had, before the Judge (Revisions), made an application for condonation of delay cannot constitute a valid basis for condonation of delay and would, in our opinion, be immaterial and would not enable the Judge (Revisions) to condone the delay in filing the appeal when no such material had been placed on the record at the appellate stage. We would answer question No. (4) in the affirmative.

14. Our answers to the questions referred are as follows :

Question No. (1) : In the negative.

Question No. (2)(a): In the affirmative.

Question No. (2)(b) : In the negative.

Question No. (3): In the negative.

Question No. (4): In the affirmative.

15. We make no Orders as to costs. The fee of the learned counsel for the department is assessed at Rs. 200.


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