M/S Archita Tour And Travels Thru. Proprietor Vijay Kumar Mishra And Another vs. State Of U.P. Thru. Secy. Revenue, Lko. And 2 Others

Held

The Court held that the appellate authority's order dated December 18, 2023, was illegal and arbitrary. The reasoning was that deciding an appeal ex parte on merits without providing a reasonable opportunity to the parties violates the principle of 'Audi alteram partem'. The Court relied on Order XLI Rule 17 of the CPC, which states that an appeal can only be dismissed for non-prosecution, not on merits, if the appellant is absent. The Supreme Court's judgment in Benny D'Souza was also cited, reinforcing this principle. The Court further referred to Section 107 of the UP GST Act, emphasizing the appellate authority's duty to provide an opportunity of hearing and pass a just and proper order based on the grounds of appeal. The impugned order was set aside, and the matter was remitted back to the appellate authority for a fresh decision after affording an opportunity of hearing to both parties. The appellate authority was directed to expedite the appeal and decide it within three months.

Facts

The petitioner, M/s Archita Tour And Travels, challenged an order dated December 18, 2023, passed by the Additional Commissioner, Grade – II (Appeal – 5), Commercial Tax. This order rejected the petitioner's appeal and upheld the adjudicating authority's order dated July 26, 2021. The petitioner contended that the appellate order was passed ex-parte because their counsel could not appear on the scheduled date. The appellate authority had noted that despite sufficient service, no one appeared for the appellant and proceeded to decide the appeal on merits. The petitioner argued that in the absence of the appellant, the appeal should have been dismissed for default rather than decided on merits.

Key Issues

1. Whether the appellate authority can proceed to consider and decide an appeal 'ex parte' on merits in the absence of the appellant or their counsel, contrary to the principles of natural justice and procedural law? (Section 107 of the UP GST Act, Order IX Rule 6(1)(a), Order IX Rule 8, Order XLI Rule 17 of the Code of Civil Procedure, 1908). The petitioner argued that in the absence of the appellant, the appeal should have been dismissed for want of prosecution, citing Order XLI Rule 17 of the CPC and the Supreme Court's decision in Benny D'Souza & Ors. Vs. Melwin D'Souza & Ors. The revenue did not present any arguments.