Allahabad High Court
The Commissioner, Commercial Tax vs S/S Hotel Agra Ashok on 10 September, 2013
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 10
Case :- SALES/TRADE TAX REVISION No. - 630 of 2013
Applicant :- The Commissioner, Commercial Tax
Opposite Party :- S/S Hotel Agra Ashok
Counsel for Applicant :- S.C.
Hon'ble Arun Tandon,J.
Service of notice upon the assessee is deemed sufficient in view of the office report dated 9th September, 2013.
Heard learned Standing Counsel for the department. Nobody is present on behalf of the assessee even in the revised reading of the list.
This commercial tax revision is directed against the order of the Commercial Tax Tribunal dated 8th April, 2013 passed in Second Appeal No. 313 of 2003 (assessment year 1999-2000). Under the order impugned the Tribunal has allowed the second appeal filed by the assessee, against the order of the Joint Commissioner (Appeals)-4, Trade Tax, Agra dated 20th June, 2003, whereby first appeal no. 182 of 2003 for the assessment year 1999-2000, was dismissed and the order made under Section 21 of the Trade Tax Act made by the assessing authority was maintained.
The Tribunal under the order impugned has held that the proceedings initiated under Section 21 of the Act themselves were vitiated as the notice of the proceedings had been served upon one Sri Nandishwar Giri, who could not represent the assessee and therefor, there was non-compliance of the requirement of law. It has been held that Nandishwar Giri was earlier an employee of Hotel Agra Ashok. After transfer of Hotel Agra Ashok, he could not have accepted notice on behalf of the said assessee. Therefore, service of notice under Section 21 (1) of the Act was not sufficient.
Learned Standing Counsel for the department points out that there has been complete non-application of mind at the hands of the Tribunal in respect of the facts as they exist on record and noticed in the order of the first appellate authority. It is pointed out that the first appellate authority had recorded a categorical finding in its order dated 20th June, 2003 that Nandishwar Giri was none other than the person, in whose favour an authority letter had been issued by the assessee firm for the assessment year 1999-2000. At no point of time said authorization was withdrawn. It is with reference to the said authorization issued by the assessee firm itself for the year 1999-2000, service of notice under Section 21 (1) of the Act was affected upon Nandishwar Giri. It had therefore, been held that service of notice under Section 21 (1) of the Act upon the assessee was sufficient, as it was duly served upon the authorized representative appointed for the assessee firm.
I have considered the submission made by the learned Standing Counsel for the department and have examined the records of the present revision.
After going through the order passed by the Tribunal, this Court finds that the there has been complete non-application of mind to the facts qua Nandhishwar Giri, being none other than the person duly authorized to represent the assessee firm in the proceeding of the relevant assessment year i.e. 1999-2000 and that Nandishar Giri had represented the firm in the regular assessment proceedings. The first appellate authority has noticed that in view of the aforesaid, service of notice under Section 21 (1) of the Act upon Nandhishar Giri has to be treated as sufficient service upon the assessee.
The tribunal appears to have completely over looked the aforesaid facts while recording that since Nandishar Giri had ceased to be employee of the assessee from the service on him was not sufficient. The Tribunal has lost sight of the fact that the firm had never withdrawn the authorization, which had been executed in favour of Nandishar Giri to represent the firm in the assessment proceedings of the year i.e. 1999-2000. Therefore, service of notice of proceedings under Section 21 (1) of the Act upon Nandhishar Giri in the facts of the case cannot be faulted with and even otherwise, after service of notice upon Nandhishar Giri, the assessee had participated in the proceedings.
Therefore, order of the Tribunal dated 8th April, 2013 being based on non-consideration of relevant facts, as noticed herein above, cannot be sustained and is hereby set aside. Service of notice of the proceedings under Section 21 (1) of the Act upon the assessee firm through Nandishar Giri is held to be sufficient. The second appeal no. 313 of 2003 filed by the assessee is restored to its original number. Let the second appeal be decided afresh, preferably within three months from the date a certified copy of this order is filed before the Tribunal concerned.
The present revision is allowed subject to the observations made above.
(Arun Tandon, J.)
Order Date :- 10.9.2013
Sushil/-
