# M/s Royal Sanitations, Mathura Revisionist v. Commissioner of Commercial Tax, UP, Lucknow

- **Citation:** (2024) 2 ILRA 179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-25
- **Case number:** Commercial Tax Revision No. 302 of 2022
- **Bench:** Shekhar B. Saraf
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-royal-sanitations-mathura-revisionist-v-commissioner-of-commercial-tax-up-51315
- **Pages:** 3

## Headnote

Limitation - U.P. Value Added Tax Rules,
2008 - Rule 39 - Condonation of Delay -
Revisionist challenged Tribunal's order dated
21.07.2022 condoning 1365-day delay in filing
revenue's appeal - Held, Tribunal justified in
condoning delay based on sufficient cause,
including staff shortages, employees' B.L.O.
duties during 2019 and 2022 elections, and
COVID-19 limitation exclusion from 15.03.2020
to 22.02.2022 as per Supreme Court directive -
N. Balakrishnan Vs M. Krishnamurthy and
Collector, Land Acquisition Vs Mst. Katiji
followed,
emphasizing
acceptability
of
explanation over length of delay - Chief Post
Master General Vs Living Media India Ltd.
distinguished - Rule 39 mandates assessee to
maintain
records
beyond
eight
years
if
proceedings
pending,
supporting
ongoing
assessment - Tribunal directed to decide appeal
within four months - Revision dismissed. (Para
5-8)

Revision petition disposed of.

List of Cases Cited:

## Text

2 All. M/s Royal Sanitations, Mathura Vs. Commissioner of Commercial Tax, UP, Lucknow
179

15. This writ petition is, accordingly,
allowed.
----------
(2024) 2 ILRA 179
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.01.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Commercial Tax Revision No. 302 of 2022

M/s Royal Sanitations, Mathura
 ...Revisionist
Versus
Commissioner of Commercial Tax, UP,
Lucknow ...Respondent

Counsel for the Revisionist:
Sri Suyash Agarwal

Counsel for the Respondent:
C.S.C.

Limitation - U.P. Value Added Tax Rules,
2008 - Rule 39 - Condonation of Delay -
Revisionist challenged Tribunal's order dated
21.07.2022 condoning 1365-day delay in filing
revenue's appeal - Held, Tribunal justified in
condoning delay based on sufficient cause,
including staff shortages, employees' B.L.O.
duties during 2019 and 2022 elections, and
COVID-19 limitation exclusion from 15.03.2020
to 22.02.2022 as per Supreme Court directive -
N. Balakrishnan Vs M. Krishnamurthy and
Collector, Land Acquisition Vs Mst. Katiji
followed,
emphasizing
acceptability
of
explanation over length of delay - Chief Post
Master General Vs Living Media India Ltd.
distinguished - Rule 39 mandates assessee to
maintain
records
beyond
eight
years
if
proceedings
pending,
supporting
ongoing
assessment - Tribunal directed to decide appeal
within four months - Revision dismissed. (Para
5-8)

Revision petition disposed of.

List of Cases Cited:
1. Chief Post Master General & Ors. Vs Living
Media India Ltd. & anr.; (2012) 3 SCC 563

2. St. of M.P. Vs Bhure Lal; (not fully cited in
judgment)

3. M/s Anil Enterprises Vs Commissioner of
Commercial Tax, U.P. Lucknow; Sales/Trade Tax
Revision
No.
124
of
2020,
decided
on
20.07.2022

4. N. Balakrishnan Vs M. Krishnamurthy; (1998)
7 SCC 123

5. Collector, Land Acquisition, Anantnag &
anr.Vs Mst. Katiji & ors.; (1987) 2 SCC 107

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. Heard Sri Suyash Agarwal, learned
counsel for the revisionist and Sri Bipin
Kumar Pandey, learned Additional Chief
Standing Counsel for the State.

2. This revision petition has been filed
against an order dated July 21, 2022 passed
by
the
Commercial
Tax
Tribunal
(hereinafter referred to as "the Tribunal)
wherein delay of 1365 days in filing the
appeal has been condoned.

3. The question of law, that arises, is
as follows:

"A. Whether the Tribunal was
legally justified in condoning the delay of
1365 days in filing the appeal of revenue
before the Tribunal contrary to the decision
of Supreme court in the matter of Chief
Post Master General & Ors Vs. Living
Media India Ltd. and Anr and State of M.P.
Vs. Bhure Lal?"

4. Sri Suyash Agarwal, learned
counsel appearing on behalf of the
revisionist has relied upon a coordinate
Bench judgment of this Court in M/s Anil
180 INDIAN LAW REPORTS ALLAHABAD SERIES
Enterprises
v.
Commissioner
of
Commercial
Tax,
U.P.
Lucknow
(Sales/Trade Tax Revision No.124 of 2020,
decided on July 20, 2022) to buttress his
argument that such inordinate delay cannot
be condoned on wholly vague and generic
grounds. The coordinate Bench upon
examining the facts in that particular case
had held that delay of 530 days should not
have been allowed by the Tribunal. The
coordinate Bench has relied on Supreme
Court's judgment in Postmaster General
& Ors. v. Living Media India Limited
and Another reported in (2012) 3 SCC
563 to support its judgment.

5. Per contra, Sri B.K. Pandey,
learned Additional Chief Standing Counsel
appearing on behalf of the State submits
that in the present case, the Tribunal, while
specifically dealing with the reasons
provided for the inordinate delay and all the
judgments of the Supreme Court, has come
to a finding that in the present case, reasons
provided for the said delay were justified.
He relied upon a judgment of the Supreme
Court
in
N.
Balakrishnan
v.
M.
Krishnamurthy reported in (1998) 7 SCC
123. The relevant paragraph of the said
judgment reads as under:

"9.It
is
axiomatic
that
condonation of delay is a matter of
discretion of the court. Section 5 of the
Limitation Act does not say that such
discretion can be exercised only if the delay
is within a certain limit. Length of delay is
no matter, acceptability of the explanation
is the only criterion. Sometimes delay of the
shortest range may be uncondonable due to
a want of acceptable explanation whereas
in certain other cases, delay of a very long
range can be condoned as the explanation
thereof is satisfactory. Once the court
accepts the explanation as sufficient, it is
the result of positive exercise of discretion
and normally the superior court should not
disturb
such
finding,
much
less
in
revisional jurisdiction, unless the exercise
of discretion was on wholly untenable
grounds or arbitrary or perverse. But it is a
different matter when the first court refuses
to condone the delay. In such cases, the
superior court would be free to consider the
cause shown for the delay afresh and it is
open to such superior court to come to its
own finding even untrammelled by the
conclusion of the lower court."

6. I have perused the judgments
reproduced in the impugned order and find
that the impugned order has taken into
account the facts of the particular case and
examined the sufficiency of cause in
relation
to
the
delay.
The
relevant
paragraphs of the impugned orders are
delineated below:

"12. In the present case, there is a
delay of only 1365 days. The reasons of
delay are that there was shortage of
employees, employees were busy in B.L.O.
duties, no senior assistant, who looks after
the proceedings of filing appeal was
appointed in the office and there was
spread of COVID-19.

13. So far as the ground of spread
of COVID-19 is concerned, in this regard,
it is notable that Hon'ble Apex Court
considering spread of COVID-19 in the
country, has directed to exclude the period
of limitation for filing the appeals from
15.03.2020 to 22.02.2022. hence, the
period of delay from 15.03.2020 to
17.01.2022 cannot be treated to be delayed
period for filing this appeal. The reason of
the employees having been busy in B.L.O.
duties is concerned it is a fact of judicial
notice
that
for
B.L.O
duties,
State
employees are deputed on various election
2 All. M/s Hawkins Cookers Limited, Juhi Kanpur Vs. State of U.P. & Ors.
181
duties, they go for training at several
rounds, lists are prepared of the employees
for election duties and other ancillary
works are done by the employees of the
State, hence, the ground of delay taken-up
by the revenue appears to have a close
connection
with
the
Parliamentary
Elections of 2019 and U.P. State Elections,
2022.

14. Learned counsel for the
respondent assessee referring the Rule 39
of the U.P. VAT Rules, has argued that as
per this rule, the account books and
documents maintained by a dealer or other
person shall be for a period of eight years
after expiration of the assessment year to
which
such
books,
accounts
and
documents: It is notable that in this Rule it
has also been provided that where any
proceedings are pending against a dealer,
he shall maintain books, accounts beyond
period of eight years till such proceedings
are finalized. In this case, it is undisputed
that account books of the assessee have
been rejected by the assessing authority
and assessee had filed first appeal and the
learned first appellate authority has
remanded the matter to to the assessing
authority for passing assessment order
afresh, hence, the assessment proceedings
for the relevant year is yet not been
finalized and matter is still in dispute.
Hence, as per provisions given in Rule 39,
the assessee has to maintain account books
and other relevant documents for the
relevant year till the proceedings finalized.
Hence, on this point, the objection of the
assessee is not tenable in the eyes of law."

7. The Tribunal has also distinguished
the judgment of the Supreme Court
rendered in Chief Post Master General
and Others' case (supra) and relied upon
the judgment of the Supreme Court in
Collector, Land Acquisition, Anantnag
and Another v. Mst. Katiji and Others
reported in (1987) 2 SCC 107 to support its
decision.

8. In light of the above, I am of the
view that the delay is explained by the
authorities and the appeal is required to be
heard by the Tribunal, as so much time has
already elapsed. I am also of the view that
the hearing of the appeal should be
expedited. Accordingly, the Tribunal is
directed to hear and decide the appeal
within four months from date.

9. With the aforesaid observations, the
revision petition is disposed of.
----------
(2024) 2 ILRA 181
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Writ Tax No. 739 of 2020

M/s
Hawkins
Cookers
Limited,
Juhi
Kanpur ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shubham Agrawal

Counsel for the Respondents:
C.S.C.

Taxation Law - U.P. Goods and Services
Tax Act, 2017 - Section 129 - Rule 138 -
Penalty for Incorrect E-Way Bill - Petitioner
challenged penalty order dated 14.02.2020 and
appellate order dated 13.10.2020 for incorrect
place of supply in four out of eight E-Way bills -
Held, goods intercepted on 31.01.2020 were
accompanied by correct invoices and bilties
reflecting destination (Satharia, Jaunpur), but