2012 PLP (Trib (PTD)

ABDUL RAUF (ACCOUNTANT MEMBER).

Through this order we propose to dispose of the above-listed miscellaneous applications-five dated 30-8-2011 and the remaining five dated 6-10-2011. Through the applications dated 30-8-2011 prayer for recall of the order dated 10-11-2010 has been made whereas through the remaining five applications dated 6-10-2011 the applicant has requested condonation of delay of sixteen days in filing five miscellaneous applications for recall of the order passed by the learned single bench of this Tribunal on 10-11-2010.

2. Briefly stated facts relating to the miscellaneous applications dated 30-8-2011 are that the sales tax appeals filed by the applicant bearing S.T.As. Nos.2144 to 2148/LB of 2009 were dismissed by the learned Single Bench of this Tribunal for non-prosecution vide its order dated 10-11-2010. The applicant filed miscellaneous applications dated 30-8-2011 for recall of the order stating that the notice issued for hearing of the case on 10-11-2010 was neither received by the applicant nor its authorized representative. It was, therefore, prayed that the order dated 10-11-2010 be recalled and the sales tax appeals of the applicant be restored to their original positions. It was, however, pointed out to the applicant's AR that the said miscellaneous applications dated 30-8-2011 had been filed late by 16 days. Consequently five further miscellaneous applications were filed on 6-10-2011, which contained prayer for condonation of delay in filing the miscellaneous applications dated 30-8-2011.

3. The learned AR stated that the delay in filing miscellaneous applications for recall of the order dated 10-1-2010 was not intentional as the applicant stood nothing to gain by the delay. He explained that the owners of the business concern had gone abroad when miscellaneous applications were due to be filed. He further contended that the order dated 10-11-2010 was illegal ab initio because it had been passed without proper service of notice on the applicant or its A.R thus depriving it of its vested right of pleading its case. He also referred to the judgments of the High Court reported as 2002 PTD 506, GST 2003/CL601 and judgment of this Tribunal reported as 2011 PTD 456 to strengthen his plea for condonation of delay. He particularly drew our attention to the following observation of the Honourable High Court in the judgment cited as 2002 PTD 506:-- "For various reasons stated in the order, this Court expressed the view that unless an assessee was contumacious, a prayer for condonation of delay in filing appeal should be considered objectively. Particularly, for the reason that by delaying an appeal the assessee does not stand to gain anything nor a delay on his part gives rise to or creates a valuable right in favour of the Revenue. Therefore, we direct that the delay of 43 days in filing of the appeal ought to have been condoned."

4. The learned DR on the other hand, opposed the request for restoration of appeals as well as condonation of delay.

5. We have given due consideration to the rival arguments and have also gone through the relevant record available on file. We are of the opinion that the submissions made by the learned AR of the applicant carry force and merit acceptance because of a number of reasons. In the first place the appeals dismissed by the learned single bench are violative of the principle of audi alterm parterm because no notice for hearing of the case on 10-11-2010 was served upon the applicant or its AR. It is, by now, a fairly well settled legal proposition that principles of natural justice underlie every provision of law and the norms of natural justice require that nobody should be condemned unheard. Dismissal of appeals without proper service of the notice was thus violative of the principle of natural justice.

6. Secondly, hierarchy of the courts in this country has, in a number of judgments, emphasized that even in ex parte judgments justice should appear to have been done i.e. nobody should be deprived of his valuable right of treatment in accordance with law on mere technical grounds. They have gone to the extent of holding that even in the absence of adequate pleading the courts are obliged to apply correct law in order to dispense justice. We have noted that in the instant case the learned single bench has not touched upon the merits of the case at all and consequently the principle "that the justice should also appear to have been done" does not appear to have been adhered to.

7. Thirdly the modern trend is not to sacrifice justice at the altar of mere technical subtleties.

8. For reasons recorded supra we allow all the miscellaneous applications, recall the order passed by the learned single bench and condone the delay in filing the miscellaneous applications dated 30-8-2011. Appeals filed by the applicant thus stand restored to their original position. C.M.A./275/Tax(Trib.) Applications accepted.