M/S Flexituff International Ltd. ... vs Commercial Tax
2023 Latest Caselaw 2413 MP

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                   BEFORE
                            HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                      &
                               HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
                                              ON THE 10 th OF FEBRUARY, 2023
                                              WRIT PETITION No. 3001 of 2023

                           BETWEEN:-
                           M/S   FLEXITUFF INTERNATIONAL LTD.       (NOW
                           FLEXITUFF   VENTURES     INTERNATIONAL    LTD.)
                           THROUGH AUTHORIZED SIGNATORY N.K. MALVIYA
                           S/O LATE SHRI P.N. MALIVYA 11, SOUTH TUKOGANJ,
                           INDORE (MADHYA PRADESH)

                                                                                         .....PETITIONER
                           (SHRI MURTUZA BOHRA, LEARNED COUNSEL FOR THE PETITIONER.)

                           AND
                           THE COMMISSIONER, COMMERCIAL TAX, M.P.,
                           CHETAK CHAMBERS, R.N.T. MARG, INDORE (MADHYA
                           PRADESH)

                                                                                      .....RESPONDENTS
                           ( SHRI AAKASH SHARMA, LEARNED GOVT. ADVOCATE FOR THE
                           RESPONDENT/STATE.)

                                 This petition coming on for admission this day, JUSTICE SUSHRUT

                           ARVIND DHARMADHIKARI passed the following:
                                                              ORDER

Heard on the question of admission.

In this petition under Article 226/ 227 of the Constitution of India the petitioner has assailed order dated 11.01.2023 Annexure-P/5 whereby the application for restoration under Rule 61 (4) of the M.P. VAT Rules, 2006 was rejected. The petitioner has also assailed the order dated 16.11.2021 Annexure- P/3 whereby the second appeal has been dismissed for want of prosecution. Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 13-02-2023 10:16:56

Learned counsel for the petitioner submitted that the appeal was rejected on two counts:- (1) reason of delay was not accepted (2) the application for restoration cannot be submitted by Chartered Accountant and should have been submitted under the signature of the appellant. Learned counsel for the petitioner has drawn attention of this Court to Rule 61 (4) of the M.P. VAT Rules, 2006 which provides that a person duly authorised under sub-section (1) of section 23 of the VAT Act, 2002 can also file an application on behalf of the appellant. The learned Court below has erred in rejecting the application. It also did not consider the fact that the arguing Chartered Accountant had some bereavement in his family therefore, he could not appear in the case. Learned

counsel for the petitioner relied on the judgment of the Apex Court in the case o f Rafiq and Another Vs. Munshilal and Another reported in 1981 SCC 788 contend that the parties whose interest was represented by the lawyers was affected by his absence therefore, the innocent party suffering injustice on account of default of lawyer cannot be countenanced and the appeal deserves to be restored to its original number.

On the other hand, learned counsel for the respondent/State vehemently opposed the prayer and submitted that the orders passed by the Appellate Court needs no interference since the petitioner was negligent in prosecuting his case. The application for restoration was filed beyond the period of limitation i.e. 30 days therefore, this petition deserves to be dismissed.

Heard the learned counsel for the parties.

Taking into consideration the fact that whether the party should be allowed to suffer on account of inaction, deliberate omission or misdemeanor of his lawyer/ Chartered Accountant and in the light of Rafiq and Another

Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 13-02-2023 10:16:56

(Supra) this court is of the considered opinion that the appeal deserves to be restored to its original number subject to payment of cost of Rs.5,000/- which should be deposited in M.P. High Court Legal Services Committee, Indore on or before 17.02.2023 and the receipt shall be produced before the Appellate Court on the next date of hearing. The orders dated 11.01.2023 (Annexure-P/5) and order dated 16.11.2021 (Annexure-P/3) are hereby set aside.

The parties are directed to appear before the Appellate Court on 20.02.2023 at 11 A.M. and on such dates as fixed by the Appellate Court. The Appellate Board is directed to decide the appeal No.A-299/CTAB/14 in accordance with law as expeditiously as possible.

                                  (S. A. DHARMADHIKARI)                  (PRAKASH CHANDRA GUPTA)
                                           JUDGE                                  JUDGE
                           ajit




Signature Not Verified
Signed by: AJIT
KAMALASANAN
Signing time: 13-02-2023
10:16:56