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2003 DIGILAW 26 (ALL)

INDIAN STEEL WORKS v. COMMISSIONER, SALES TAX

2003-01-07

RAJES KUMAR

body2003
RAJES KUMAR, J. ( 1 ) THESE are two S. T. R. Nos. 1705 of 1990 and 1706 of 1990 filed by the assessee against the order of Tribunal, Saharanpur Bench, dated October 11, 1995, by which, two applications for recalling the earlier orders dated April 21, 1990 relating to the assessment year 1983-84 and the order dated April 30, 1990 relating to the assessment year 1984-85 have been dismissed. ( 2 ) VIDE order dated April 21, 1990 the Tribunal has decided the appeal of the applicant ex parte for the assessment year 1983-84 and vide order dated April 30, 1990, the Tribunal had decided the appeal ex parte relating to the assessment year 1984-85. Appeal No. 18/1987 filed by the applicant for the assessment year 1983-84 and Appeal No. 22/1987 filed by the applicant for the assessment year 1984-85 were fixed for hearing on April 6, 1990 before the Tribunal. It appears that no one appeared on behalf of assessee and therefore, ex parte orders have been passed. To recall the ex parte orders, two applications have been filed before the Tribunal. In the application, it was contended that the notices of hearing were served on Sri Pravin Kumar chopra, partner of the firm. It was contended that Sri Pravin Kumar Chopra was not looking after the cases and was not aware about the proceedings and in as much as, he had gone out of station on March 22, 1990 and had fallen ill there and in the circumstances, he could not inform the other partner about the date of hearing. A medical certificate and an affidavit was filed. I have heard Sri Piyush Agarwal, learned Counsel for the applicant and learned Standing Counsel. The Tribunal vide order dated October 11, 1990, rejected the aforesaid two applications and against the said orders, the present revisions have been filed. ( 3 ) I have heard Sri Piyush Agarwal, learned Counsel for the applicant and learned Standing counsel. The order of Tribunal shows that it has not been disputed that Sri Pravin Kumar Chopra was not doing the privy of the case and ever appeared before the Tribunal. The Tribunal has not disputed the averment made in the application and in the affidavit. The order of Tribunal shows that it has not been disputed that Sri Pravin Kumar Chopra was not doing the privy of the case and ever appeared before the Tribunal. The Tribunal has not disputed the averment made in the application and in the affidavit. The Tribunal has proceeded that on the earlier occasion, adjournment was granted and record does not show who was actual partner of the firm dealing with the assessment case. ( 4 ) IN my opinion, the view taken by the Tribunal is pedantic. Normally, appeal should be heard after hearing both the parties. If on account of some reason, assessee could not appear on the date fixed and reasons have been explained in the application, it is always in the interest of justice to provide opportunity of hearing and recall ex parte orders. ( 5 ) IN my opinion, Tribunal was not justified in rejecting the restoration applications. On the facts and circumstances, restoration applications are allowed. ( 6 ) FOR the reasons above, revisions are allowed. Restoration application No. 8 of 1990 in appeal no. 16 of 1987 and Restoration application No. 9 of 1990 in appeal No. 16 of 1987 are allowed. The ex parte orders passed by the Tribunal in the aforesaid appeals are set aside and the Tribunal is directed to decide the appeal afresh after giving proper opportunities of hearing to the parties expeditiously. .