- (1.) R. K. GULATI, J. This is a revision under section 11 of the U. P. Trade Tax Act, 1948 (for short, "the Act") and is directed against the order dated 13/19th September, 1995, passed by a three-member Bench of Trade Tax Tribunal, U. P. , Lucknow. By the order under challenge, the Tribunal has dismissed the application of the revisionist seeking condition of delay in filing the appeal under section 10 of the Act. As a result whereof the appeal was also dismissed as barred by time.
(2.) BRIEFLY stated the facts are that M/s. Laxmi Sales Pvt. Ltd. (hereinafter referred to as "the assessee") had applied for grant of eligibility certificate under section 4-A of the Act. The said provision, inter alia, provides for exemption from payment of tax, amongst others on the turnover of sales in respect of goods manufactured by a new unit for a specified period. The Divisional Level Committee by its order dated May 2, 1992 rejected the application for grant of eligibility certificate, against which a review application filed by the assessee was also rejected on February 20, 1993 by the same authority. On February 27, 1993 a second application for review was filed before the Divisional Commissioner, Allahabad, which was also rejected on March 25, 1995 by the Divisional Level Committee on the ground that it was not maintainable. The two orders aforesaid dated February 20, 1993 and March 25, 1995 by which the review applications were rejected, were thereafter challenged by the assessee before this Court in Writ Petition No. 611 of 1995. On April 26, 1995 a Division Bench of this Court disposed of the writ petition with certain observations to which reference shall be made at its appropriate place. Finally, on June 26, 1995 the assessee preferred an appeal before the Trade Tax Tribunal against the order dated February 20, 1993 together with an application under section 5 of the Limitation Act, seeking condonation of delay in filing the appeal. As stated earlier, the Trade Tax Tribunal refused to condone the delay and rejected the application for condonation of delay in filing the appeal. Consequently, the appeal itself was dismissed as barred by limitation. Hence, this revision. I have heard Sri S. C. Mandhyan, counsel for the assessee and the Standing Counsel for the respondent, Commissioner of Trade Tax. The learned counsel for the assessee assailed the order under challenge by saying that it was wholly unsustainable in law for the reason that the Tribunal had not considered the reasonings and grounds on which the condonation of delay was sought. The submission was that on facts the delay in filing the appeal was fully explained which deserved to be condoned at the hands of the Tribunal, inasmuch as, the assessee had throughout been pursuing the cause bona fide and with due diligence. It was argued that the assessee was prevented by sufficient cause on account of which the appeal could not be filed within time. The learned consel urged that justice should not be allowed to be defeated on account of technicalities especially when substantial stakes were involved in so far the assessee was concerned inasmuch as if the matter was not adjudicated on merits, the assessee would be put to an irreparable loss and will be required to pay large sum of money as taxes to which the assessee was not otherwise liable in respect of the period for which the exemption was sought. In other words, it was canvassed that if the refusal to condone the delay results in grave miscarriage of justice, it would in itself be a ground to excuse the delay. The learned Standing Counsel on the other hand canvassed that the period of limitation for filing an appeal as prescribed by the law had elapsed, the court was not competent to extend the period of limitation but the delay could be condoned for "sufficient cause" alone which was not there in the instant case.
(3.) THE Trade Tax Tribunal divided the period of delay into four parts, which in the words of the Tribunal were as under : " First period relates to the second review petition filed on the basis of wrong legal advice before the Divisional Commissioner, Allahabad. Second review petition related to the period from the date of passing of the order of the honourable High Court, i. e. , April 26, 1995 to May 17, 1995. Third period relates to the time from May 17, 1995 to June 23, 1995, the period involved in obtaining the certified copy of the Writ Petition No. 611 of 1995. Fourth period relates to the period June 23, 1995 to June 27, 1995 when this writ petition was filed. THEre is no explanation whatsoever, for the delay from June 23, 1993 to June 27, 1993. " Before proceeding further it will be useful to refer to the provisions of the Act under which the appeal was filed. Sub-section (2) of section 10 of the Act provides for an appeal by any person aggrieved, inter alia, against an order refusing to grant an eligibility certificate, within a period of 90 days from the date of service of copy of such order, decision or direction. Clause (c) of sub-section (9) of section 10 directs amongst other things that an appeal against an order granting or refusing to grant an eligibility certificate shall be filed before the President of the Tribunal and shall be heard and disposed of by a Bench of three members. Sub-section (3) of section 10 says that section 5 of the Limitation Act, 1963 shall apply to appeal or other applications under that section. Sub-sections (4) and (5) contemplates the disposal of an appeal before the Trade Tax Tribunal.;