2022 (6) TMI 203 - SC - VAT and Sales Tax

High Court Invalidates Assessment Orders and Recovery Proceedings for Improper Notice Service

Chandra Prakash Mishra Versus Flipkart India Private Limited And Ors.

The High Court set aside ex parte assessment orders and recovery proceedings due to improper notice service. The Court directed refund of withdrawn funds ... Adverse remarks against the officer of VAT department acting as AO - Order of the High Court - Validity of provisional assessment order - ex-parte order - proper service of notice or not - HELD THAT:- In the impugned order dated 29.02.2016 relating to the merits of the case are concerned, no comments are required in that relation, for the same having not been challenged by the State. However, even when all the findings of the High Court in the principal part of order dated 29.02.2016 are accepted, they would only lead to the result that the impugned actions in drawing up ex parte assessment orders and then seeking to enforce recovery as also the impugned action in rejecting the application for registration of change of place of business did not meet with the approval of the High Court. Such disapproval of the High Court had been essentially based on its interpretation of the applicable rules as also its analysis of the factual aspects concerning the issues involved in the writ petition. Even if the High Court found that the impugned actions of the authorities concerned, particularly of the appellant, had not been strictly in conformity with law or were irregular or were illegal or even perverse, such findings, by themselves, were not leading to an inference as corollary that there had been any deliberate action or omission on the part of the Assessing Authority or the Registering Authority; or that any ‘tactics’ were adopted, as per the expression employed by the High Court. Every erroneous, illegal or even perverse order/action, by itself, cannot be termed as wanting in good faith or suffering from malafide. In the present case, when admittedly the respondent No. 1 itself had applied for registration of the change of place of business nearly 11 months after the alleged event; and at the time of drawing up the assessment orders, the appellant as the Assessing Authority had no other registered address of the respondent No. 1 on record, his actions of passing ex parte assessment orders could not have been termed as being deliberate or wanting in good faith, particularly in view of the facts that attempts were indeed made from his office to get the notices served on the respondent No. 1 at its registered address and even at its alleged changed address at Ghaziabad. Even if such attempts, of serving notices, were held to be illegal or irregular by the High Court, its deduction that the impugned actions were deliberate or lacking in good faith is difficult to be endorsed - The appellant, while functioning as an Assessing Authority could not have kept the assessment proceedings pending for an indefinite length of time. The High Court seems to have taken rather a sterner view of the matter, which was not required in the given set of facts and circumstances. Noticeably, the appellant was not impleaded personally a party in the first two writ petitions which were decided by the common order dated 29.02.2016. The comments or remarks which were to operate personally against the appellant were not even called for without the appellant having been joined personally a party and having been extended an opportunity of hearing and explanation. There was no necessity of stretching the matter too far and passing further orders for imposition of costs and for departmental actions with other comments regarding competence of the appellant to discharge quasi-judicial functions. - Having said that, we deem it appropriate to close this matter with annulment of strictures and observations against the appellant in both the impugned orders dated 29.02.2016 and 02.08.2016. - It is deemed appropriate and hence order that the said amount of Rs. 2,00,000/- shall be deposited by the respondent No. 1 with the Uttar Pradesh State Legal Services Authority. The remarks and observations against the appellant in the impugned orders are expunged; and the questioned parts of the impugned orders, as reproduced hereinabove, are annulled and set aside. Appeal allowed. Issues Involved:1. Legality of ex parte assessment orders and recovery proceedings.2. Proper service of notice for assessment orders.3. Rejection of application for change of business address.4. Imposition of costs and personal liability on the appellant.5. Departmental action and competence of the appellant to discharge quasi-judicial functions.Detailed Analysis:1. Legality of Ex Parte Assessment Orders and Recovery Proceedings:The appellant, functioning as the Deputy Commissioner, Commercial Tax, had passed ex parte assessment orders and initiated recovery proceedings under the UP VAT Act. The High Court found that these orders were issued without proper service of notice to the writ petitioner, who had shifted its place of business from Noida to Ghaziabad. The High Court set aside the ex parte assessment orders dated 15.12.2015 and quashed the recovery proceedings, directing the refund of Rs. 49,82,01,250/- withdrawn by the department from the writ petitioner’s account, with interest as per Section 40 of the UP VAT Act.2. Proper Service of Notice for Assessment Orders:The High Court determined that the department was aware of the writ petitioner’s change of address but failed to serve notice properly. The service of notice at the Noida address was deemed insufficient and in violation of Rule 72 of the Rules. The High Court emphasized that the department's actions were deliberate and aimed at withdrawing money from the petitioner’s bank account through dubious means.3. Rejection of Application for Change of Business Address:The writ petitioner’s application for registering the changed address, filed on 05.12.2013, was rejected by the Registering Authority on 02.09.2014. The High Court set aside this rejection, directing the Registering Authority to process the application after permitting the writ petitioner to deposit the requisite fees. The appellant, acting as the Assessing Authority, had no other registered address on record at the time of drawing up the assessment orders.4. Imposition of Costs and Personal Liability on the Appellant:The High Court imposed costs of Rs. 2,00,000/- on the department and left it open for the Commissioner, Commercial Tax, Lucknow, to institute an inquiry and fix responsibility on the erring officer. In a subsequent order dated 02.08.2016, the High Court imposed additional costs of Rs. 50,000/- personally on the appellant for passing another assessment order on 04.05.2016, which was not in conformity with the earlier High Court order. The appellant's actions were viewed as harassment and lacking in good faith.5. Departmental Action and Competence of the Appellant to Discharge Quasi-Judicial Functions:The High Court directed the Principal Secretary, Trade Tax, U.P. Government, to consider whether the appellant was fit to discharge quasi-judicial functions and to take appropriate disciplinary action. The Supreme Court, however, found that the High Court’s strictures and observations against the appellant were unwarranted, as there was no concrete evidence of malice or want of good faith on the appellant’s part. The Supreme Court annulled the questioned parts of the High Court’s orders, including the imposition of costs and the remarks regarding the appellant’s competence.Conclusion:The Supreme Court allowed the appeals to the extent of expunging the strictures and observations against the appellant in the High Court’s orders dated 29.02.2016 and 02.08.2016. The Court ordered the respondent No. 1 to deposit the amount of Rs. 2,00,000/- awarded as costs with the Uttar Pradesh State Legal Services Authority. Any action taken or contemplated pursuant to the impugned orders was rendered redundant.