TaxTMI 
TaxTMI 
2018 (6) TMI 112
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.... 13.04.2011 passed by the learned Addl. Commissioner Grade-II (Appeal)-5, Commercial Tax Lucknow Sri G.N. Gupta in First Appeal No. 1216 of 2010 for the annual year 2004-05 under Section 7(3) read with Section 30 of the U.P. Trade Tax Act, 1948. Brief fact of the case is that the revisionist is Government of India undertaking, exclusive deal in providing telecommunication services as provided by the Indian Telegraph Act, 1885. The function providing the telecommunication services to the consumer prior to 30th September, 2000 was the department of telecommunication i.e. Union of India. In the year 2000 the Union Government, under a policy decision, decided to retain the power to issue the license only and created a corporate body under the ....
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....transferring of any right of any kind either for use the equipment installed in the exchange or for exchange use of exchange. The Deputy Commissioner, Trade Tax, Barabanki has passed the assessment order dated 17.12.2007 under Section 7(3) of the U.P. Trade Tax Act for the Assessment Year 2004-05. Feeling aggrieved by the Assessment Order dated 17.12.2007, the revisionist preferred an appeal before the Additional Commissioner Grade-II (Appeal)-5, Lucknow, which was registered as Appeal No. 1216/10 AY-2004-05, which has been dismissed on 13.04.2011 by the first appellate authority. Feeling aggrieved by the order dated 13.04.2011 the revisionist preferred an appeal, being Defective Appeal No. 38 of 2013, before the Commercial Trade Tax Tri....
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.... learned Tribunal was justified in rejecting the appeal on technical issue of condonation of delay, when a meritorious matter like this on merit has been decided by the Apex Court and it has been held that the electromagnetic waves and radio frequencies are not 'goods' and thus cannot be subjected to tax'. 5. 'Whether the learned Tribunal was justified to impose tax despite the decision of the Apex Court on 2.3.2006 in the case of Bharat Sanchar Nigam Ltd. vs. Union of India reported in (2006) 3 SCC page 1, wherein it has been held that the telecommunication services cannot be subjected to tax and the said decision is binding under Article 141 of the Constitution of India on all courts in India'. 6. 'Whether the learned Tribunal was jus....
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....xistence of the institution of courts. The Supreme Court has been making a justifiably liberal approach in matters instituted before it. He further placed reliance upon the judgment in the case of Parimal vs. Veena alias Bharti, reported in (2011) 3 SCC 545 and submitted that purpose of Limitation Act was not to destroy the rights and primary function of a Court is to adjudicate dispute between the parties and to advance substantial justice. If the explanation given does not smack of mala fide or is not shown to have been put forth as a part of a time dilation strategy, the Court must show utmost consideration to the litigant. Therefore, learned counsel for the revisionist submitted that the Commercial Trade Tax Tribunal, Bench-I, Lucknow....
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....ce and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of anon-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. The judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.' The Apex Court, while dealing a matter of delay on the object of doing substantial justice in the case of Parimal vs. Veena alias Bharti (supra), in paragraph 15 has held as under: 'While deciding whether there ....
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....in the process of making decision is a common feature. Therefore, certain amount of latitude is not impermissible. The learned Tribunal, without appreciating the correct factual and legal position, has proceeded to pass judgment dismissing the appeal as time barred. Therefore, the impugned judgment is not sustainable in law. On perusal of the judgment relied upon by the learned counsel for the revisionist, it is apparent on the face of it that the Hon'ble Supreme Court by considering the expression 'sufficient cause' has held that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice b....