Affidavit Acceptance of Reasonable opportunity Whether Affidavit. should be accepted without giving opportunity of rebuttal? Held - No It is not

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1 2005 (Vol. 26) - 92 ALLAHABAD HIGH COURT Hon'ble Rajes Kumar, J. Trade Tax Revision Nos. 582,583,584 & 585 of 2004 The Commissioner, Trade Tax, U.P. vs. S/s. Dubey Stone Works, Sonebhadra Date of Decision : 06th October, 2004 [A] Affidavit Acceptance of Reasonable opportunity Whether Affidavit should be accepted without giving opportunity of rebuttal? Held - No It is not justified to accept the averments made in the affidavit without giving proper opportunity of rebuttal to the department. [B] Service of notice/order On the adult male member of the family of the dealer residing with U. P. Trade Tax Rules, 1948 Rule 77 - First Appellate Authority has categorically recorded a finding that the person receiving the notice is the adult male member of the family of the dealer and is residing with him However, proprietor and his father stated by affidavit that they reside separately since long - The observation of Tribunal that First Appellate Authority has not recorded any finding about residing together is not correct Tribunal is directed to decide about validity of the service after giving proper opportunity to the Department to prove residing together. JUDGMENT (Hon'ble Rajes Kumar, J.)

2 These four revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as Act ) are directed against the order of Tribunal dated relating to the Assessment Years , 92-93, 93-94, respectively. 2. Dealer/opposite party (hereinafter referred to as Dealer ) was carrying on the business of stone grid. Ex-parte assessment orders have been passed by the Assessing Authority for the aforesaid assessment year. Copies of the aforesaid assessment orders alleged to have been served upon Sri Girija Shanker Dubey, the father of the proprietor of the firm. Sri Mahendra Pratap Dubey on Applicant filed application under section 30 of the Act for the aforesaid years within 30 days from the said date. Applications under Section 30 of the Act were rejected. Thereafter, dealer filed appeals before the Deputy Commissioner (Appeals), Trade Tax, against the ex-parte assessment orders along with the applications under Section 5 of the Limitation Act for condonation of delay on the ground that the dealer was prosecuting its case in the proceedings under Section 30 of the Act and, therefore, the delay should be condoned Deputy Commissioner (Appeals), Trade Tax, Allahabad vide order dated 17th September, 1998 rejected all the applications under Section 5 of the Limitation Act and rejected all appeals as barred by limitation. Appellate Authority also observed that the service of the order was made on Sri Girija Shankar Dubey, father of the proprietor of the firm who was the adult male member and was living with the proprietor Sri Mahendra Pratap Dubey. Against the order of the First Appellate Authority, dealer filed appeals before the Tribunal. Tribunal allowed the appeals by the aforesaid impugned order, set aside the order of the First Appellate Authority and

3 remanded back the case to the First Appellate Authority with the direction to decide the appeals on merit treating all the appeals within time. 3. Heard learned Counsel for the parties. 4. Before the Tribunal, Sri Girija Shanker Dubey and Sri Madendra Pratap Dubey proprietor of the firm filed affidavits in which it was stated that both were residing separately since years and have no professional relations. Tribunal relied upon the affidavits and held that there was no proper service of the order in accordance to Rule 77. Tribunal further observed that the First Appellate Authority has not recorded any finding to the effect as to whether father was actually residing with the dealer. 5. Learned Standing Counsel submitted that the order of the Tribunal is erroneous for the reason; (1) that the affidavits have been accepted without giving opportunity to the department; (2) that the Tribunal has recorded a wrong finding that the First Appellate Authority has not recorded any finding to the effect as to whether father was actually residing with the dealer, while the First Appellate Authority has recorded a categorical finding that father was residing with the proprietor and (3) in the application under Section 30 of the Act the date of service on the father has been accepted as proper service. 6. I have perused the order of the Tribunal and the authorities below. 7. In my opinion, order of the Tribunal is vitiated. Tribunal appears to have accepted the affidavits of Sri Girija Shanker Dubey and Sri Mahendra Pratap Dubey

4 without giving opportunity to the department. The acceptance of the averments made in the affidavit without giving opportunity is not justified Department should be given proper opportunity to rebut the averments made in the affidavit. The observation of Tribunal that First Appellate Authority has not recorded any finding to the effect as to whether the father was actually residing with the dealer is not correct. Perusal of the order of the First Appellate Authority shows that a categorical finding has been recorded that Sri Girija Shanker Dubey is the adult male member of the family of Mahendra Pratap Dubey and was residing with him. In the circumstances, the matter requires reconsideration by the Tribunal. Tribunal is directed to decide the question whether there was a proper service on Sri Girija Shanker Dubey in accordance to Rule 77 after giving proper opportunity to the Department. It is open to the Department to rebut the averments made in the affidavits filed by Sri Girija Shanker Dubey and Sri Mahendra Pratap Dubey and to file other evidence to show that Sri Girija Shanker Dubey was residing along with Sri Mahendra Pratap Dubey. In case, if the Tribunal comes to the conclusion that Sri Girija Shankar Dubey was not residing along with Sri Mahendra Pratap Dubey and service on Girija Shankar Dubey was not proper. First Appellate Authority be directed to decide the appeals on merit. In case, if the Tribunal comes to the conclusions that the service on Girija Shanker Dubey was proper, Tribunal should examine the order of the First Appellate Authority rejecting the applications under Section 5 of the Limitation Act refusing to condone the delay.

5 8. In the result, all the four revisions are allowed. Order of the Tribunal are set aside and the matter is remanded back to the Tribunal to decide all the appeals afresh in the light of the observations made above