[ALLAHABAD HIGH COURT]
Trade Tax Revision No. 247 of 2006
M/s Banaras Beads Ltd., Varanasi
vs.
The Commissioner, Trade Tax, U.P., Lucknow
Date of Decision : 08th August, 2006
Limitation for assessment-The U.P. Trade Tax Act, 1948-Section 21(2)-Notice under section 21 issued beyond prescribed time- Issue raised before Appellate Authority for the first time-Plea rejected by Tribunal as the objection not raised before assessing authority-Validity of finding of the Tribunal.
Where the assessee had, for the first time before Appellate Authority, pleaded that notice under section 21 was issued after expiry of the limitation prescribed under section 21, and therefore, the order passed under Section 21 of the Act was barred by limitation, whether the Tribunal was legally justified in rejecting the plea because the assessee had not raised the objection about jurisdiction before the assessing authority?
Held-No.
With following observations, the Hon,ble Court allowed the revision application filed by the assessee and remanded the case to the Tribunal:-
"In my opinion, order of the Tribunal is not sustainable. In the case of Laxmi Narain Anand Prakash vs. C.S.T., reported in 1980 UPTC, 125, Full Bench of this Court held that notice under Section 21 of the Act is a jurisdictional notice and by issuing a valid notice, to be served properly in accordance to law on the dealer, the Assessing Authority assumes the jurisdiction to proceed and unless a proper notice under Section 21 of the Act is issued and properly served, the authority has no jurisdiction to proceed. In the present case, it appears that no notice under Section 21 of the Act was issued. Moreover, eight years had been expired on 31.03.1989, thus prima facie it appears that order passed on 31.01.1993 was beyond time. In any view of the matter, issue relates to the jurisdiction of the Assessing Authority to pass the order under Section 21 of the Act, which goes to the root of the case and, therefore, the issue raised even for the first time before the Tribunal ought to have been entertained and adjudicated. Tribunal has acted illegally in refusing to entertain the grounds relating to the jurisdiction of the Assessing Authority to pass the order under Section 21 of the Act. Tribunal is directed to adjudicate the grounds relating to the jurisdiction of the Assessing Authority to pass the order under Section 21 of the Act beyond eight years."
[ALLAHABAD HIGH COURT]
Trade Tax Revision No. 137 of 2006
M/s Sartaz Hussain, Moradabad
vs.
The Commissioner, Trade Tax, U.P., Lucknow
Date of Decision : 11th August, 2006
Penalty Section 13-A(4) –The U.P. Trade Tax Act, 1948-Two bills bearing same number produced in respect of two consignments of goods, loaded on two different trucks-Account books not produced for verification-Inference of two sets of account books drawn-Penalty imposed-Upheld by the Tribunal.
Where the goods were detained on the ground that the goods in two vehicles were being transported against the same bill No. 7 dated 12.12.2003, on the basis of which, it was inferred that the dealer was maintaining two bill books and where the dealer on being asked by Mobile Squad Officer to produce books of account for verification but it failed and Bill book produced before the assessing authority was found rebound, whether the Tribunal was legally justified in upholding the penalty imposed under section 13-A(4) of the U.P. Trade Tax Act, 1948?
Held-Yes.
The Hon’ble Court has dismissed the revision with following observations:-
"I do not find any error in the order of the Tribunal and the authorities below. Two consignments were found being transported against two bills bearing same bill number, which had raised reasonable doubt that both the bills were issued from two bill books thus, to show bonafide, dealer ought to have produced the books of account before the Mobile Squad, but the same had not been produced. The Assessing Authority found that the bill book was rebound, the same was also not produced before the Tribunal. On these facts, inference drawn by the Assessing Authority and confirmed by the Tribunal that necessary entries of the goods were not available in the books of account when the goods were detained, cannot be said to be unjustified and without any basis."
[ALLAHABAD HIGH COURT]
Trade Tax Revision No. 118 of 2000
Rock Hard Cement Works
vs.
Commissioner, Trade Tax, U.P., Lucknow
Date of Decision : 26th July, 2006
Exemption to New Units-The U.P. Trade Tax Act, 1948-Section 4-A – Certificate from ISI and no objection certificate from the Pollution Control Board not produced-Rejection of exemption application by the Divisional Level Committee-Order of Divisional Level Committee confirmed by the Tribunal.
Whether the Tribunal was legally justified in upholding the rejection of exemption application under section 4-A of the U.P. Trade Tax Act, 1948 on the ground that assessee had not produced Certificate from ISI and no objection certificate from the Pollution Control Board?
Held-No,
The Hon’ble Court allowed the revision with following observations:
"In my opinion, for the grant of eligibility certificate under Section 4-A of the Act, the conditions mentioned in Section 4-A of the Act and the notification issued thereunder are only relevant and are to be looked into. Section 4-A of the Act and the notification issued thereunder do not require a unit to obtain the ISI certificate and no objection certificate from the Pollution Control Board for the purpose of exemption. Thus, asking the applicant to furnish such certificates is wholly unjustified and rejection of application for the exemption in the absence of the aforesaid two certificates is erroneous. The exemption application of the applicant is to be examined within the ambit of provisions of Section 4-A of the Act and the notification issued thereunder."
[ALLAHABAD HIGH COURT]
Trade Tax Revision Nos. 66, 68, 70 & 71 of 1999
Commissioner, Trade Tax, U.P., Lucknow
vs.
M/s Moradabad Rubber Scrap, Moradabad
Date of Decision : 26th July, 2006
Entries in the Schedule-The U.P. Trade Tax Act, 1948-Section 3-A-Sale of Rubber Belting- After purchase of used, waste, unserviceable, old rubber conveyor belting from various Industries and after cutting into small pieces as per the requirement of buyer-Rate of tax-Applicability of notification relating to notification prescribing rate of tax on sale of "Old, discarded, unserviceable or obsolete machinery, stores or vehicles including waste products except cinder, coal ash and such items as are included in any other Notification issued under the Act".
Where the dealer had admitted that it had purchased used, waste, unserviceable, old rubber conveyor belting from various Industries and after cutting into small pieces as per the requirement of buyer had sold conveyor belting and sold conveyor belting were being used in Thresher, whether the Tribunal was legally justifying in upholding that rubber belting sold by the assessee was covered under the entry prescribing rate of tax on sale of "Old, discarded, unserviceable or obsolete machinery, stores or vehicles including waste products except cinder, coal ash and such items as are included in any other Notification issued under the Act?
Held-No,
The Hon’ble Court allowed the revision filed by the Commissioner Trade Tax U.P. with the following observations:
"The perusal of assessment order for the Assessment Year 1992-93 shows that the dealer had admitted that it had purchased Conveyor Belting and sold the Conveyor Belting which are being used in Thresher, thus, as per the admission of the dealer itself, it was useable as a Conveyor belting. Nowhere dealer made out any case that it was not useable as Belting. It may be that such Rubber Belting may have been sold by the Industries as a old, discarded and obsolete material, but if the same has been sold in the form of Conveyor Belting after cutting into small pieces, after removing the unusable part making it usable as a Conveyor Belting, it is liable to tax under the specific entry relating to Belting namely "Belting of all kinds".
…it is not the case of the dealer that the Conveyor belting purchased by the dealer was not useable. To the contrary, it has been admitted that it was purchased as a Conveyor Belting and it was sold as a Conveyor Belting which is being used in the Thresher. Learned Counsel for the dealer submitted that the statement of the assessee referred in the Assessment Year 1992-93 is not correct while the Deputy Commissioner (Appeals) in its order has held that the item has out lived its uses, therefore, it cannot be said that the belting was useable. This argument is not acceptable. Before the Deputy Commissioner (Appeals), Counsel for the dealer argued that the Conveyor Rubber Belting was being used by the big industries and when it became old and obsolete, it was sold to the dealer, later on, dealer sold the Rubber Belt to its customer after reducing its length. This argument of the dealer shows that it has not been disputed that what had been sold was the Rubber Belting."
[ALLAHABAD HIGH COURT]
Trade Tax Revision No. 1009 of 1999
Commissioner of Trade Tax, U.P., Lucknow
vs.
S/S Hari Fertilizers, Varanasi
Date of Decision : 24th July, 2006
Stock transfer-The Central Sales Tax Act, 1956-Section 6-A-Dealer disclosing three different figures of stock transfer of goods-Observation by the assessing authority that the dealer could not reconcile the figures-Exemption on part of the turnover allowed- First Appellate Authority allowed appeal without referring the explanation and without giving any detail of reconciliation –Tribunal upheld the order of Appellate Authority.
Where, the assessee had disclosed three different figures of stock transfer at various stages for the same assessment year and where the assessing authority had observed that the dealer could not reconcile the figures, whether the Tribunal was legally justified in upholding the order of the Appellate Authority, of allowing exemption claimed by the assessee, where the Appellate Authority had not referred the explanation and had not given any detail of reconciliation in its order?
Held-No.
The Hon’ble Court has, after allowing the revision filed by the Commissioner, U.P. Trade Tax, remanded the case to the Tribunal with the following observations:-
"In my opinion, order of the Tribunal is not sustainable. Tribunal has not considered the explanation of the dealer before coming to the conclusion that it is proper. Perusal of the assessment order as well as order of the First Appellate Authority shows that at different stages, different figures of the stock transfer have been given. The explanation reconciling those figures has not been referred by the First Appellate Authority and by the Tribunal. It is also not clear whether the books of account have been produced for verification to reconcile the difference or not. In this view of the matter, the view of the Tribunal that the explanation is proper and acceptable is erroneous. Tribunal is the last Court of fact, ought to have refer and consider the explanation before coming to the conclusion that the explanation is proper and acceptable. Tribunal has not discharged its obligation in accordance to the law. Thus, the order of Tribunal is liable to be set aside."
[ALLAHABAD HIGH COURT]
Trade Tax Revision No. 562 of 1999
Commissioner, Trade Tax, U.P., Lucknow
vs.
M/s Arihant Traders, Lalitpur
Date of Decision : 02nd August, 2006
Penalty-The U.P. Trade Tax Act, 1948-Section 13-A(4)-Goods inspected within the State-Bill and builty, issued by Lalitpur (a place inside U.P.) dealer and transporter produced disclosed origin and destination of goods within the State-On search Bill of Diesel for issued by Bandhyawna (a place outside U.P.) Petrol pump found and expenses found recorded for Nagpur to Kanpur trip- goods seized alleging that the same were being imported from Nagpur and released after accepting security-Before Assessing Authorites, entry of goods shown in the account books-Penalty levied under section 13-A(4)-Penalty set aside by the Appellate Authority-Tribunal upheld the order of the Tribunal.
Where the inspecting authority at the time of detention of goods had found that the driver had taken Diesel in the truck from Bandhyawana and the driver had recorded expenses for Nagpur to Kanpur trip and also were shown recorded in the account books, whether the Tribunal was legally justified in upholding the order, of the Appellate Authority, by which he had set aside the penalty order?
Held-Yes.
With the following observations, the Hon’ble Court has dismissed the revision filed by the Commissioner:-
"When the Vehicle was detained, statement of driver Sri Ramesh Chandra S/o Sri Gajadhar Prasad was recorded on 09.02.1997. In the statement, he has categorically stated that the goods were loaded from Lalitpur for transportation to Jhansi. Bill and builty relating to the goods were also produced and relating to the Cash memo of Diesel, it was explained that on 06.02.1997 Vehicle was at Nagpur and on that day, Diesel was filled and Vehicle arrived unloaded from Nagpur to Lalitpur. The entry of bill was found recorded in the Cash-book. Thus, in my opinion, there was absolutely, no reason to infer that the goods was not covered by the bill and builty and was not found recorded in the books of account and was not loaded from Lalitpur. The penalty under Section 13-A (4) can only be levied, in case, if it is found that the goods omitted to have shown in the books of account, documents or register. On the facts and circumstances of the case, no case has been made out that the goods was not found recorded in the books of account. In this view of the matter, I do not find any error in the order of the Tribunal."
[ALLAHABAD HIGH COURT]
Trade Tax Revision No. 468 of 2006
M/s Melcon Engineers, Lohia Nagar, Ghaziabad
vs.
Commissioner of Trade Tax, U.P., Lucknow
Date of Decision : 18th August, 2006
Works Contract-The U.P. Trade Tax Act, 1948-Section 3-F- Contract for repairing of electricity generation plant- Notification No. ST-II-2399/X-9 (195)-85-U.P. Act/XV/48-Order-87, dated 27.04.1987.- Levy of tax on value of certain items imported from outside the State of U.P.
Where the Tribunal had accepted that contract of repairing of electricity generation plant was not covered under the Notification No. ST-II-2399/X-9 (195)-85-U.P. Act/XV/48-Order-87, dated 27.04.1987, which provided the list of works contracts for the purpose of levy of tax, whether the Tribunal was justified in restoring the assessment order in which the assessing authority had levied tax on value of goods which were imported from outside the State and were used in the execution of the works contract?
Held-No,
The Hon’ble Court has allowed the revision filed by the assessee with following observations:-
"The works executed by the applicant was for repairing of the electricity generation plant. This works contract was not included in 15 works contracts mentioned in the notification No. 2399, dated 27.04.1987 and thus, the value of the goods involved in the execution of the works contract namely, repairing of electricity generation plant cannot be subjected to tax. Tribunal has erred in levying the tax on the value of the goods in the absence of the notification relating to repairing of electricity generation plant. Order of the Tribunal is accordingly, liable to be set aside."
[ALLAHABAD HIGH COURT]
Trade Tax Revision Nos. 168 & 169 of 2006
Hotel Taj Ganges, Nadesar Palace, Varanasi
vs.
Commissioner, Trade Tax, U.P., Lucknow
Date of Decision : 28th August, 2006
Assessment-The U.P. Trade Tax Act, 1948-Section 7-Loose F & B reports providing No. of breakfast, lunch, snacks, Dinner for the day-Supply or estimate.
Where the loose papers, in the name of daily F & B cover reports, recovered at the time of survey revealed Numbers of breakfast, lunch, snacks, Dinner and morning tea and where the assessee had failed to show that the details of the breakfast, lunch and dinner mentioned in such cover report have been incorporated in the accounts and the bills relating to the aforesaid supplies were raised, whether the Tribunal was justified in inferring the suppression of turnover of supply of food and snacks to persons whereas the assessee, running the hotel and restaurant business, had alleged that the loose papers were F & B reports were meant for preparing estimate by accounts department?
Held-Yes, from the perusal of F & B Cover Report, it cannot be accepted that it was for the costing of the food per person for forwarding to the accounts section for further planning. It is in fact a report given by the catering assistant to the accounts section informing that how many persons have taken breakfast, lunch and dinner on that day under the various plans for the preparation of the bill etc. Thus, the details of the cover reports were to be incorporated in the accounts. If they have not been incorporated, it amounts to omission to incorporate the supply of breakfast, lunch and dinner on that particular day as per the Cover Report. In the present case, the applicant is not able to show that the details of the breakfast, lunch and dinner mentioned in the cover report have been incorporated in the accounts and the bills relating to the aforesaid supplies were raised. Thus, it has been rightly treated as relating to the suppressed supply of food-stuff.
[ALLAHABAD HIGH COURT]
Trade Tax Revision No. 1990, 1992 & 1993 of 2004
Commissioner, Trade Tax, U.P., Lucknow
vs.
S/S Diamond Sales Corporation, Agra
Date of Decision : 24th August, 2006
Entries in the Schedule-The U.P. Trade Tax Act, 1948-Section 4-Taxability of Cotton Coated Fabrics-While importing Cotton Coated Fabric, Form 31-furnished-Provision of furnishing of Form 31 applicable in case of taxable goods.
Whether the Tribunal was legally justified in holding that CCF, sold by the assessee, was not taxable when the assessee had imported such goods against Form 31 a number of times without mentioning on Form 31 and other documents that it was tax free CCF?"
Held-Yes.
The Hon’ble Court has dismissed the revision filed by the Commissioner, U.P. Trade Tax with the following observations:-
"If the dealer has purchased the CCF and sold the CCF merely because it was imported against declaration form, the tax cannot be levied. In the case of Commissioner of Sales Tax, U.P. vs. M/s Arora Material Store reported in 1982 UPTC 50, this Court held that the Cotton Coated Fabrics is exempted from tax under the Notification issued under Section 4 of the Act being covered under the entry "Cotton Fabrics of all varieties."
[ALLAHABAD HIGH COURT]
Trade Tax Revision Nos. 1898, 1908 & 1909 of 2004
Commissioner, Trade Tax, U.P., Lucknow
vs.
S/S Anshul Traders, Khairagarh, Agra
Date of Decision : 19th August, 2006
Penalty-The U.P. Trade Tax Act, 1948-Sections 13-A (4) and 15-A (1) (o) - Goods intercepted within the State and found accompanied by the bill, builty etc.-Bill issued by registered dealer-Tribunal held penalties unjustified.
Where goods were found accompanied by Bill and builty and bill was found to have been issued by registered dealer and where the assessing authority had imposed penalty treating the goods being imported, whether the Tribunal was legally justified in upholding the order, passed by the Appellate Authority, by which he had deleted the penalty?
Held-Yes.
The Hon’ble Court was pleased to dismiss the revision filed by the Commissioner, U.P. Trade Tax with the following observations:-
"On the checking goods were found accompanied by the bill, builty etc. Goods were detained and the penalty have been levied under Section 15-A (1) (o) of the Act treating the goods importing from outside the State of U.P. First Appellate Authority held that there was no material that the goods were imported from outside the State of U.P., inasmuch as the Dealer/opposite party (hereinafter referred to as "Dealer") is a registered dealer and goods were found accompanied by the documents. Tribunal has confirmed the order of the First Appellate Authority. Findings of the First Appellate Authority and Tribunal are finding of fact, based on material on record, which does not require any interference."
[ALLAHABAD HIGH COURT]
Trade Tax Revision No. 544 of 2000
Commissioner of Trade Tax, U.P., Lucknow
vs.
S/S Darshan Oils Pvt. Ltd., Aligarh
Date of Decision : 23rd August, 2006
Stock transfer-The Central Sales Tax Act, 1956-Section 6-A-Goods, dispatched to commission agent outside the State, sold by commission agent the same day-Form F not produced-Inference that goods moved outside the State in pursuance of the pre existing sale contracts.
Where, in the circumstances that the goods dispatched to commission agent were sold by commission agent on the day they were received by the commission agent and the assessee had not produced Form F, the assessing authority had inferred that goods had moved in pursuance of pre-existing contracts of sale, whether the Tribunal was legally justified in treating the movement of goods as a result of stock transfer?
Held-Yes.
The Hon’ble Court was pleased to dismiss the revision file by the Commissioner, U.P. Trade Tax with the following observations:-
"Tribunal held that the revenue has not made out any case that the goods had directly send to the buyers and the payment had been received at Aligarh from the buyers. The sales were made by consignment agent to the various parties on the arrival of the goods at Delhi. Merely because goods were sold on the same day on which they arrived, it cannot be said that the movement of the goods were in pursuance of any pre-existing contract with buyers. The sales of goods depend upon the demand of the goods. In the case of Indian Wood Products Company Ltd., Bareilly vs. C.T.T. (supra) this Court held that the sale made on the very day or immediately after the receipt of the goods not led to the conclusion that it was inter-State sales. This Court in the case of M/s Packar Times Pvt. Ltd. vs. C.S.T. reported in 2004 NTN (Vol. 24), 38 held that unless there is material that there was a pre-existing contract with buyer and the movement of the goods were in pursuance thereof, the despatch of the goods cannot be treated as inter-State sales.
In the present case, Tribunal has recorded a categorical finding that the goods were not moved in pursuance of any prior contract of sale and were despatched by way of stock transfer to the consignment agent, M/s Rakesh Kumar Deepak Kumar, Delhi and the sales were made by consignment agent to the various parties after the receipt of the goods at Delhi. On the facts and circumstances of the case, I do not find any error in the order of the Tribunal and the same is accordingly upheld."
Civil Misc. Writ Petition (Tax) No. 1272 of 2006
Central Bank of India, through its Senior Manager, Meerut
vs.
State of U.P. and Others
Date of Decision : 08th August, 2006
Condonation of delay-The U.P. Trade Tax Act, 1948-Section 10 read with Section 5 of the Limitation Act-Court’s direction to file appeal within ten days from the date of Court’s order-Certified copy received by local counsel and sent to assesse after the time of ten days had passed- Appeal filed with application for condonation of delay-Rejection of application by the Tribunal-Justification.
Where the petitioner was directed by the Court to file appeal before the Tribunal within ten days from the date of order and where the delay, in presenting appeal, was caused due to the reason that the local counsel, after receiving the copy of the order, had taken time in sending the copy, whether the Tribunal was legally justified in rejecting the application for condonation of delay moved alongwith the appeal?
Held-No.
With following observations, the Hon’ble Court has allowed the Writ Petition of the Bank and has condoned the delay:-
"Tribunal has taken a pedantic view while rejecting the application under Section 5 of the Limitation Act while in the matter of Condonation of delay a pragmatic view should be taken and not pedantic view. Tribunal observed that it has not been explained that when the certified copy of the order has been received and despite the direction by this Court how much time has been taken in taking the opinion from the higher authorities. Tribunal also observed that the petitioner has not complied with the directions given by this Court. Apex Court and this Court have consistently held that in the matter of Condonation of delay liberal and pragmatic view should be taken and delay should normally be condoned unless a case of gross negligence is made out."
[ALLAHABAD HIGH COURT]
Trade Tax Revision Nos. 1760 & 1780 of 1998
Commissioner, Trade Tax, U.P., Lucknow
vs.
S/S Agrawal Mandi Janta Ent Nirmata Association, Baghpat (Meerut).
Date of Decision : 25th August, 2006
Turnover-The U.P. Trade Tax Act, 1948-Section 2 (i)-Inclusion of amount of freight in the turnover-Coal, imported through Railway, sold to brick-kiln owners-Bills raised and tax charged-No case of endorsement of Railway Receipts-Amount of freight paid to Railway by brick-kiln owners-Assessment treating the amount of freight as part of turnover of the assessee –Appeal by the Appellate Authority allowed and appeal order confirmed by the Tribunal.
Where, in the circumstances that the assessee, after importing coal from outside the State, had sold it to brick-kiln owners without endorsing Railway-Receipts in favour of brick-kiln owners and brick kiln owners had paid the amount of freight, the assessing authority had determined taxable turnover after adding freight amount, whether the Tribunal was legally justified in not treating amount of freight as part of turnover of the assessee?
Held-No.
The Hon’ble Court has allowed the revision filed by the Commissioner, U.P. Trade Tax with the following observations:-
"In the present case, dealer was registered under the U.P. Trade Tax Act and Central Sales Tax Act. Coal was imported against Form 31 from outside the State of U.P. and Form C were also issued to the selling party. Goods were imported through the Railway and the railway receipts were in the name of the dealer. It was not the case of the dealer that the railway receipts were endorsed in favour of the purchasers and after the endorsement of the railway receipt, delivery of the goods were taken by them on the payment of freight charges. Dealer only contended that the freight was paid by the customer to the railway, though the dealer was not able to substantiate its claim that the freight was paid by the purchaser, but even assuming that it was paid by the customer since railway receipt was in the name of the dealer and liability to pay the freight was of the dealer, it is deemed to have been paid on behalf of the dealer by the purchaser. Freight incurred for transporting the goods from outside the State of U.P. to inside the State of U.P. was inward freight prior to the sale and, thus, it would be a part of the turnover. Reliance is placed on the decisions of this Court in the case of Commissioner of Trade Tax vs. S/S Ramapati Tewari Jainath Tewari (supra) and Commissioner of Trade Tax vs. S/S Sharma Coal Co., Azamgarh (supra)."
[ALLAHABAD HIGH COURT]
Civil Misc. Writ Petition No. 1310 of 2006
M/s Astrotech International, Noida
vs.
State of U.P. and Others
Date of Decision : 19th August, 2006
Stay of realization of tax assessed-The U.P. Trade Tax Act, 1948-Section 10-Rejection of waiver application-Appeal on same grounds for earlier assessment year allowed by the Division Bench of the Tribunal-Business closed-Rejection of application on the ground of non disclosure of date of closer of business-Financial crisis stated-Rejection of waiver application unjustified.
Where, in the circumstances that the appeal of the assessee in the case of an earlier assessment year was allowed on the same grounds by the Division Bench of the Tribunal and the assessee had stated financial crisis due to closer of business but, in the affidavit, had not mentioned the date of closer of business, whether the Tribunal was justified in rejecting the application for waiving the condition of payment of one-third of the disputed amount of tax for grant of stay?
Held-No.
The Hon’ble Court, after allowing the revision, has remanded the case to the Tribunal with the following observations:-
"In my view, the order of the Tribunal it is not sustainable. While considering the waiver application, Tribunal ought to have considered the prima facie case on merit and also the financial hardship. Tribunal should consider the earlier decision of the Division Bench of the Tribunal, cited by the petitioner, in which it has been held that the aforesaid notification was not applicable. Tribunal may also consider the financial condition of the petitioner."
