TaxTMI 
TaxTMI 
TaxTMI 
2013 (4) TMI 23
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....ommittee at Moradabad. This application came to be rejected by an order dated 2nd February, 1999. The revisionist therefore made a review application under Rule 25 of the U.P. Trade Tax Rules, 1948. The review application was heard and decided by means of a reasoned order dated 9th January, 2002. The revisionist filed second review application on 5th March, 2002, which was rejected by the Divisional Level Committee vide order dated 19th February, 2003 after recording that the second review application is not maintainable. The revisionist thereafter filed an appeal under Section 10 of the 'Act of 1948' only against the order dated 2nd February, 1999. Along with the appeal, he filed an application for condonation of delay in filing of the sa....
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....e review application dated 9th January, 2002 should also have been challenged. The Tribunal has therefore held that the appeal cannot be proceeded with. It has to be dismissed. Challenging the order so passed Sri K.N. Tripathi, learned senior Advocate contended that the principle of merger would not apply in the case of review applications being decided. Such plea applies only where the appeal is filed and the appeal is decided. He has placed reliance upon the judgement of the Hon'ble Apex Court in the case of Manohar Shankar Nale & others Vs.Jaipalsingh Shivlalsing Rajput & others - 2008 SC, 429, wherein it has been held that principle of merger does not apply in the matter of review. So far as second reason assigned in the order of the T....
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....ting the review application dated 9th January, 2002 and in absence of challenge to the review order, the appeal cannot proceed, needs to be considered in detail. In order to appreciate the aforesaid reason disclosed in the order impugned, it would be appropriate to record that Rule 25 of the U.P. Trade Tax Rules, 1948 provides for filing of a review and the power conferred in the matter of consideration of such review application is very wide, which includes filing of documents, opportunity of hearing. For ready reference Rule 25, Sub-clause 3(c) is being reproduced here-in-below :- "If the application of a unit is rejected such unit may submit an application for review to the same Committee, within 30 days of the receipt of information....
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....was with regard to denial of opportunity of hearing. This defect in the opinion of the Court stood cured as the review application was heard on merits after affording opportunity of hearing. The appeal against the main order dated 2nd February, 1999 on the same plea of denial of opportunity was rendered on formality, inasmuch as the best order in such circumstances which could have been passed by the Tribunal would have been to remand the matter to the divisional authority for affording an opportunity of hearing to the assessee, which in fact had been afforded while deciding the review application by means of a reasoned order. This Court may further record that the Tribunal appears to be justified in recording the minimum expected require....
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....Reference - Jai Jai Ram Manohar Lal Vs. National Building Material Supply AIR 1969 SC 1267, wherein it has been held that if substantial justice and technicalities are pitted against each other, the cause of substantial justice should not be defeated on technicalities. No procedure in a Court of law should be allowed to defeat the cause of substantial justice on some technicalities. Reference--Ghanshyam Dass & Ors. Vs. Dominion of India & Ors (1984) 3 SCC, 46. Therefore, while upholding the order of Tribunal insofar as it holds that the impugned appeal cannot be proceeded for want of challenge to the order dated 9th January, 2002, this Court feels that it would have been more appropriate for the Tribunal in the facts of the case to afford ....