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The Gift-Tax Act, 1958
Jai Jai Ram Manohar Lal vs National Building Material ... on 17 March, 1969
Ghanshyam Dass And Others vs Dominion Of India And Others on 20 March, 1984

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Allahabad High Court
Akeel Khan Son Of Abdul Hakim Khan ... vs State Of Uttar Pradesh Through Its ... on 17 April, 2006
Equivalent citations: 2006 (3) AWC 2818
Author: A Tandon
Bench: A Tandon

JUDGMENT

Arun Tandon, J.

1. Heard learned Counsel for the parties.

2. Learned Counsel for the parties agree that the present writ petition may be disposed of at the admission stage itself.

3. This writ petition is directed against an order passed by the Special Secretary, Tax & Registration, Secretariat, U.P. Lucknow dated 10th March, 2006, whereby the appeal filed by the petitioner under Section 12(2) of the U.P. Entertainment and Betting Tax Act, 1979 has been dismissed on the ground that the same has been preferred beyond the prescribed period of limitation.

4. The facts relevant for the purposes of disposal of the present writ petition are: The petitioner, who is engaged in the business of Cable Network in the name and style of A.K. Cable Network, Agra, he was served with an order dated 10th October, 2005 passed by the Assessing authority, whereby his tax liability under the provisions of U.P. Entertainment and Betting Tax Act, 1979 was determined at Rs. 4,60,253/- (Rupees Four lac, sixty thousand, two hundred fifty three only) for the relevant period. Under an misconceived advised, the petitioner moved a review application against the order dated 10th October, 2005 passed by the Assessing Authority. The review application has been filed on 18th October, 2005 i.e. after ten days of the original order. The review application has been rejected by the authority concerned vide order dated 17th January, 2006 on the ground that there is no provision for review under U.P. Entertainment and Betting Tax Act, 1979 against the assessment order.

5. After coming to know of the aforesaid order, the petitioner has challenged the main order of assessment dated 10th October, 2005 as well as the order dated 17th January, 2006 by way of appeal under Section 12(2) of the U.P. Entertainment and Betting Tax Act, 1979. The appeal has been numbered as Appeal No. 10 A/11-Ka.Ni.-6-2006. The appeal so filed has been dismissed under the impugned order of the Special Secretary, Tax & Registration, Secretariat, U.P. Lucknow dated 10th March, 2006 on the ground that the same has been preferred beyond the prescribed period of limitation.

6. Learned Counsel for the petitioner submits that the period, which had elapsed in pursing the remedy of review, which was legally not maintainable, should necessarily be excluded in computing the period of limitation prescribed for filing of the appeal. Even otherwise it is submitted that It is in the interest of justice that the appeal filed by the petitioner may be heard and decided on merit instead of the same may be dismissed on technicalities as has been done in the facts of the present case. Learned Counsel for the petitioner further points out that coercive proceedings have already been initiated against the petitioner for recovery of the amount in pursuance of the assessment order.

7. I have heard counsel for the parties and have gone through the records of the writ petition.

8. Although the learned Counsel for the petitioner has not been able to point out any provision under the UP. Entertainment and Betting Tax Act, 1979 or under the UP. Cable T.V. Network (Exhibition) Rules, 1997 conferring any discretion upon the appellate authority to condone the delay in filing of the appeal beyond the prescribed period of fifteen days as provided for under Section 12 of the UP. Entertainment and Betting Tax Act, 1979.

9. This Court is of the opinion that while exercising jurisdiction under Article 226 of the Constitution of India this Court in a given case on being satisfied that the appellant has not been negligent in pursuing his remedy and further that the appeal filed by the appellant requires consideration on merits, it can require the appellate authority to entertain the appeal and decide the same on merits after condoning the delay, if any, in filing of the appeal is condoned by the Court.

10. In the given set of facts as borne out from the records of the present writ petition, this Court is of the opinion that the delay in filing of the appeal in the facts of the present case has been caused because of wrongful remedy being pursued by the Assessee. Even otherwise it has to be kept in mind that all the Courts and Tribunals have been constituted for the furtherance of substantial justice and not to obstruct the same on technicalities. Reference may be had to the judgment of the Hon'ble Supreme Court in the case of Ghanshym Dass and Ors. v. Dominion of India and Ors.; , wherein it has been held that if substantial justice and technicalities are pitted against each other, the cause of substantial justice should not be defeated on technicalities. Similarly in the case of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon it has been held that procedural law is man made to facilitate and not to obstruct the course of substantial justice. Courts must be justice oriented without giving much importance to the rules of procedure. In the background of the legal principle so initiated by the Hon'ble Supreme Court, this Court is of the opinion that interest of substantial justice would be served if the order passed by the Trade Tax Tribunal rejecting the appeal of the petitioner as barred by limitation be quashed and the Tribunal is directed to consider and decide the appeal filed by the petitioner on merits, in accordance with law. The order passed by the Tribunal dated 10th March, 2006 is hereby quashed. The delay in filing of the appeal is condoned and the following directions are issued:

(a) The Appellate Authority/State Government is directed to hear and decide the appeal filed by the petitioner on merits, preferably within three months strictly in accordance with law by means of a reasoned speaking order,

(b) The petitioner shall deposit a sum of Rs. 1,50,000/-(Rupees one lac fifty thousand only) within fifteen days from today before the assessing authority and shall also file a certified copy of this order before the appellate authority within the same period,

(c) Initially for a period of fifteen days no coercive action shall be taken against the petitioner for recovery of the amount as determined under order of the Assessing Authority. The after the recovery of the amount shall remain stayed for a further period of three months provided the petitioner deposits a sum of Rs. 1,50,000/-(Rupees one lac fifty thousand only) with the assessing authority as directed herein above. The deposits so made shall be subject to the final order, which may be passed in the appeal by the appellate authority.

11. Writ petition is allowed subject to the observations made herein above.

12. A certified copy of this order shall be issued to the learned Counsel for the petitioner within two days.