IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 14776 of 2007 DATE OF DECISION : 06.02.2008 The State of Haryana .... PETITIONER Versus Mukesh & Company, Village Khatkhar, District Sonepat and another ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. K.L. Goyal & Mr. Sandeep Goyal, Advocates, for the petitioner. Mr. Shailendra Jain, Advocate, for respondent No.1. * * * SATISH KUMAR MITTAL , J. (Oral) Short reply on behalf of respondent No.1 has been filed in Court today. The same is taken on record and its copy has been handed over to counsel for the petitioner. The State of Haryana has filed this petition under Articles 226/227 of the Constitution of India, challenging the orders dated 13.5.2004 (Annexure P-8) and 17.4.2007 (Annexure P-10), passed by the Haryana Tax Tribunal, respondent No.2 herein. In the present case, respondent No.1 filed an appeal (Annexure CWP No. 14776 of 2007 -2- P-3) before the Sales Tax Tribunal, Haryana, against the order dated 2.1.1996 (Annexure P-2) passed by the Joint Excise & Taxation Commissioner (A) Rohtak. The said appeal was fixed for 4.3.2002 for hearing. However, in the meanwhile, respondent No.1 requested for withdrawal of the appeal and the said appeal was ordered to be dismissed as withdrawn vide order dated 3.1.2002 (Annexure P-5). It is made clear that in the said appeal, the State of Haryana had filed the cross-objections (Annexure P-4), which were also pending, though respondent No.1 had withdrawn the appeal before the date fixed for hearing. It is also made clear that the Tribunal allowed respondent No.1 to withdraw the appeal without issuing notice of the same to the State of Haryana. Subsequently, the State of Haryana filed a review application (Annexure P-6) for reviewing the order dated 3.1.2002, whereby the appeal filed by respondent No.1 was permitted to be withdrawn. The said review application was allowed vide order dated 24.7.2002 (Annexure P-7). Accordingly, the appeal (STA No. 201 of 1996-97) filed by respondent No.1 was ordered to be restored and was listed for hearing on 16.9.2002. It appears that thereafter, none of the parties pursued either the appeal or the cross objections and the order of allowing the review application was not brought to the notice of the Tribunal, which led to passing of a fresh order dated 13.5.2004 (Annexure P-8), whereby the Tribunal declined the review application, while observing as under :- “In our opinion, the dealer was the master of his appeal. CWP No. 14776 of 2007 -3- He could continue with this appeal if he so wished. If he so wished, he could withdraw the appeal. The Tribunal dismissed the appeal on his request for withdrawal of the appeal. We do not find any snag in the order of the Tribunal whereby it permitted the dealer to withdraw the appeal. In the order of the Tribunal dated 3.1.2002, dismissing the appeal as “withdrawn”, there is no mention whatever so far as the cross objections alleged to have been filed by the Revenue are concerned. In other words, the Tribunal dealt with only the appeal of the dealer and did not deal with the cross objections alleged to have been filed by the Revenue. As we do not find any snag in the order of the Tribunal dated 3.1.2002 whereby the Tribunal accepted the request of the dealer for withdrawal of the appeal and dismissed the appeal as “withdrawn”, we decline this review application. So far as the cross objections alleged to have been filed by the Revenue are concerned, Revenue may move an application so that the said file is got laid before the Tribunal and the Tribunal apply its mind to the question whether those cross objections are tenable and can be continued.” In the aforesaid order, it was observed that it will be open for the State of Haryana to move an application before the Tribunal to apply its mind to the question whether the cross objections are tenable and can be CWP No. 14776 of 2007 -4- continued. In pursuance to that, the State of Haryana filed an application (Annexure P-9) before the Tribunal, which has been dismissed on 17.4.2007, while observing as under :- “I have gone through the application carefully and have seen the record. This Tribunal vide orders dated 13.5.2004 disposed of the STR No. 3 of 2001-02 in the presence of Shri M.K. Dutta, Joint Director (Legal) and the review was rejected and the matter regarding cross examination filed by the Joint director (Legal) also have been mentioned in the above said decision of this Tribunal dated 13.5.2004. copy of this order was dispatched vide this office Memo No. 4336 dated 18.5.2004 to the Excise & Taxation Commissioner. The same is enclosed again for ready reference. The application is disposed of accordingly.” We have heard counsel for the parties. The parties have agreed that the Tribunal has not properly considered the application (Annexure P-9) filed by the petitioner, while passing the order dated 17.4.2007 (Annexure P-10), in view of the observations made by the Tribunal vide its order dated 13.5.2004 (Annexure P-8) and matter be remitted to the Tribunal for fresh decision. Accordingly, the order dated 17.4.2007 (Annexure P-10) is hereby set aside and the matter is remitted to the Tribunal to take a fresh decision on the prayer of the petitioner for continuation of the cross objections filed by the State of CWP No. 14776 of 2007 -5- Haryana in view of the order dated 13.5.2004, in accordance with law, by passing a speaking order, within a period of two months, after hearing counsel for the parties. Petition stands disposed of. ( SATISH KUMAR MITTAL ) JUDGE February 06, 2008 ( RAKESH KUMAR GARG ) ndj JUDGE