J U D G M E N T

Amit Rawal, J.

Regional Provident Fund Commissioner in this intra court appeal is against the order of Single bench whereby the order of assessment of the Tribunal has been set aside.

2. Enforcement Officer of the appellate Provident Fund Commissioner conducted inspection of the premises of both two units, that is, Maruti Engineers and M/s.Computer Auto Scan & Service which are situated in two different buildings (adjacent to each other with a common compound) and found that they have the managerial, supervisory and financial integrity and made out a case of clubbing by issuing notice for holding an enquiry under Section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 '1952 Act', for short. Before the enquiry officer, both the aforementioned units were represented by the lawyer and placed on record account books, income tax pan numbers and other materials to establish that they were different and distinct entities having a different set of partners. Copy of the partnership deeds were also placed on record. Assessing Officer disagreed with the contentions of the establishments and clubbed the two units together to bring within the purview of the provisions of the 1952 Act.

3. Two separate appeals were filed before the Tribunal which were also dismissed. In that background, two original petitions were preferred by the establishments, that is, O.P.No.2021/1999 by Maruti Engineers and O.P.No.3315/1999 by M/s.Computer Auto Scan & Service. Learned Single Bench vide common judgment dated 23/06/2011 allowed the petitions and set aside the order of assessment as well as the Appellate order. It is in that background two appeals, that is, W.A.No.353/2012 in the case of Maruti Engineers and W.A.No.2267/2018 in the case of M/s.Computer Auto Scan & Service have been preferred.

4. Both the appeals are accompanied by applications seeking condonation of delay, of 170 days in W.A.353/12 and 2661 days in W.A.2267/18. Delay of 2661 has been explained on the ground that order of this Court in M/s.Computer Auto Scan & Services was sought to be reviewed and the time spent in the review petition if excluded, the appeal was not belated as averred and therefore prays for condonation of delay.

5. On merits, it has been argued that the learned Single Judge has abdicated in not noticing the report of the Enforcement officer much less the assessment order. In other words, the respondents/petitioners did not place on record the copy of the assessment order which was a clincher to the controversy in dispute. Infact the partners of both the firms were relatives. Earlier, M/s.Computer Auto Scan was under the proprietorship of one Thomas Muthoot but later on, in 1990, established a partnership with different set of partners aged 20 and 22 years. The other set of partners belonging to the same family were running the business under the name and style Maruti Engineers. There was a managerial, supervisory and financial integrity and that is why it was considered as one unit to fall within the purview of 1952 Act. There is no illegality and perversity in the order of the Assessing Officer as well as the tribunal.

6. On the other hand, the stand of the establishment had been that neither the Appellate authority nor the Assessing Officer examined the documents on record, that is, the pan number issued by the Income Tax Department, account books, sale tax returns, electricity connections, wage registers as, Maruthi Engineers was registered under the Factories Act and other under the Shops and Establishments Act. All the material was also in the custody of the authorities with whom the registration was done, nor the procedure prescribed under sub-section (2) of Section 7A of the 1952 Act was not followed by the enquiry officer, thus the onus to prove the case of clubbing was not discharged. Therefore question of rebuttal did not arise.

7. We have heard the learned counsel for the parties and appraised the paper books and order of t