P.I. INDUSTRIES LIMITED Vs. COMMISSIONER, TRADE TAX

JUDGEMENT

(1.) THE present revision under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as 'the Act') is directed against the order of Tribunal dated April 13, 2006 relating to the assessment year 2004 -05.

(2.) BRIEF facts of the case are that against the order of the first appellate authority dated January 29, 2005, which was served on the counsel on February 8, 2005, an appeal was filed before the Tribunal on February 21, 2006 beyond time by 287 days. Appeal was filed along with the application under Section 5 of the Limitation Act, 1963. The said application has been rejected by the impugned order. In the application under Section 5 of the Limitation Act, 1963 it was contended that by mistake of counsel an appeal could not be filed and when the applicant contacted his counsel for the preparation of the assessment case for the assessment year 2004 -05, it was found that the appeal against the appellate order dated January 29, 2005 could not be filed. The earlier counsel, thereafter handed over the certified copy of the order to the applicant representative on February 20, 2006 thereafter, an appeal was filed on February 21, 2006. An affidavit of Sri Maharaj Singh Bhandari, authorised representative was also filed in support of the contentions made in the application under Section 5 of the Limitation Act. In the affidavit the name of earlier counsel Sri A.K. Singhal was disclosed. The Tribunal refused to condone the delay on the ground that no affidavit of the counsel was filed and no evidence has been adduced in support of the contention made in the application under Section 5 of the Limitation Act. Before this Court, affidavit of Sri A.K. Singhal, Advocate has been filed in which he has admitted that the copy of the appellate order was served upon him on February 8, 2005 and on account of omission on his part he could not inform about the receipt of the appellate order and when Sri Maharaj Singh Bhandari came for the preparation of the assessment case for the assessment year 2004 -05, it was noticed that earlier appellate order dated January 29, 2005 was already in the file and the same was delivered on February 20, 2006.

(3.) THERE is no dispute that the order of the first appellate authority dated January 29, 2005 relating to the assessment year 2004 -05 was served on Sri A.K. Singhal, Advocate on February 8, 2005. In the affidavit Sri A.K. Singhal, Advocate admitted that he could not inform about the order to the applicant and when the representative of the applicant Sri Maharaj Singh Bhandari came for preparation of the assessment case for assessment year 2004 -05, the original copy of the order was found available in the file which was delivered to Sri Maharaj Singh Bhandari on February 20, 2006. In the application under Section 5 of the Limitation Act supported by an affidavit of Sri Maharaj Singh Bhandari, it was contended that the appeal could not be filed within time on account of omission on the part of the earlier counsel. On these facts, in my view there was a reasonable cause for condonation of delay. The Tribunal while rejecting the application under Section 5 of the Limitation Act has taken pedantic view. The apex court has consistently held that in the matter of condonation of delay pragmatic view should be taken. In the case of Rafiq v. Munshi Lal reported in : [1981]3SCR509 , the apex court held that the mistake on the part of the counsel is a reasonable cause.