JUDGMENT

Piyush Agrawal, J.

Heard Mr. Aditya Pandey, learned counsel for the petitioner and Mr. Rishi Kumar learned Additional Chief Standing Counsel for the State.

2. By means of present petition petitioner is seeking a writ of certiorari for quashing the order dated 12.3.2020 passed by respondent no. 2 in Second Appeal Defective No. 01 of 2018 (A.Y. 2013-14), Commissioner Commercial Tax v. M/s K.C. Flour Mill, under the provisions of Section 57 (6) of UP VAT Act, 2008 (herein after referred to as 'the Act').

3. Learned counsel for the petitioner submits that petitioner was Proprietorship firm running flour mill in the name of M/s K.C. Flour Mill and engaged in the business of manufacture and sale of Atta, Maida and Sooji. In normal course of business, the petitioner had deposited the admitted due tax for the assessment year in question. He submits that initially an ex-parte assessment order was passed on 13.6.2015, which was recalled under Section 32 of the Act and thereafter again a fresh assessment order was passed on 12.6.2016 estimating the tax liability of Rs. 8,10,906/- against which, a first appeal was preferred by the petitioner before the Additional Commissioner, Grade II, Bulandshahr. The said first appeal was allowed vide order dated 8.6.2016 and the petitioner was granted relief of Rs. 6,54,500/- towards the tax liability. However, still feeling aggrieved to the said order, the petitioner filed a second appeal before the Tribunal, which is still pending and dates are being fixed from time to time for hearing of the appeal and the State are also represented.

4. He further submits that order of the first appellate authority has attained finality on 10.10.2016 as the department has not preferred any statutory appeal before the Commercial Tax Tribunal within the limitation. However, the revenue department has preferred a second appeal on 8.1.2018 against the order of first appellate authority with the delay of 453 days, along with delay condonation application. In the delay condonation application, the grounds were taken that the competent officer was on election duty of Vidhan Sabha and there was acute shortage of manpower in the department as well as excessive workload as such the appeal could not be preferred within the limitation.

5. It was further pointed out that the petitioner submitted his objection to the said delay condonation application specifically mentioning therein the specific dates as and when the officers were on election duty as well as who was the authorized person to whom the additional charge was given. The petitioner also referred in his objection that there was no shortage of manpower in the department, however, without considering the said objection of the petitioner, the delay in filing the second appeal by the department, was condoned by the impugned order.

6. Learned counsel for the petitioner has relied upon the judgement of this Court in 2018 (100) UPTC 1447, M/s Anil Enterprises v. State of U.P. and others, relevant paras of which are quoted below:-

"8. Learned counsel for the petitioner therefore submits that the Tribunal has acted whimsically and has condoned the inordinate delay in a perfunctory manner merely for the asking, by the revenue. Once it was admitted to the revenue that it's appeal was barred by more than 689 days, a heavy burden lay to plead facts as may warrant condonation of such a delay.

9. It has been further submitted that in tax matters closure of disputes brings certainty to the assessee as he has to provide for the liabilities while continuing with his business. Therefore, the Tribunal ought to have considered the issue of condonation of delay more seriousl