TaxTMI 
TaxTMI 
TaxTMI 
2021 (3) TMI 89
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....r-company assailing the assessment order dated 20-07-2013 passed by the respondent no. 3 under section 9(2) of the Central Sales Tax Act, 1956 read with section 37 of the Assam Value Added Tax Act, 2003 in respect of quarterly turn over/return filed by the petitioner showing an amount of Rs. 3,52,41,153/- (Rupees Three Crore Fifty Two Lakhs Forty One Thousand One Hundred Fifty Three only) whereby an amount of Rs. 6,31,016/- (Rupees Six Lahks Thirty One Thousand Sixteen only) was assessed as tax due and interest payable. The demand Notice dated 30-07-2013 raising a demand of Rs. Rs. 6,31,016/- (Rupees Six Lahks Thirty One Thousand Sixteen only) pursuant to the said assessment order passed by the respondent no. 3 has also been assailed by the petitioner. Since both the writ petitions were filed by the same petitioner being aggrieved by the same respondent authority namely, respondent no. 3 and since the grounds of challenge in both the writ petitions are common namely, violation of Principles of Natural Justice because of non-issuance of proper Notice by the respondent Department prior to completion of assessments order, both the writ petitions were taken up for hearing together and....
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....e respondent No. 3 proceeded with the assessment and thereafter passed the impugned order dated 20.07.2013 and raised the demand of Rs. 10,01,015/- (Rupees Ten Lakhs One Thousand Fifteen) only as Tax due, interest payable Rs. 4,43,719/- (Rupees Four Lakhs Forty Three Thousand Seven Hundred Nineteen), penalty of Rs. 5,00,000/- (Rupees Five Lakh) only under section 90 and Rs. 1,00,000/- (Rupees One Lakh) and only under section 62(3) of the AVAT Act 2003 vide Demand Notice dated 30.07.2013. Being aggrieved the petitioner has assailed the order of the assessment and Demand Notice by way of WP(C)/3056/2017. The petitioner also submitted quarterly returns under Central Sales Tax Act showing a turnover of Rs. 3,52,41,153/- (Rupees Three Crore Fifty Two Lakhs Forty One Thousand One Hundred Fifty Three only). However, the respondent no. 3 by the impugned assessment order dated 20-07-2013 summarily assessed tax due and interest payable without the benefit of concessional rates of taxes claimed by the petitioner. Being aggrieved the action of the Department has been assailed by WP(C)/3333/2017. 6. The learned counsel for the petitioner contends that the Department acted in an arbitrary mann....
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....ly upon the same for the purposes the connected writ petition being WP(C) No. 3333/2017 also. The Department in their affidavit submitted that in spite of notices being issued by the Department there was no compliance by the petitioner in respect of the statutory requirements. The Department contended that the Eligibility Certificate dated 26.08.2013 was issued only after the assessment order dated 20.07.2013 was passed. Therefore, in the absence of compliance of the notice to appear by the petitioner- Company and the fulfilment of the statutory requirements, there was no option left to the Department but to proceed with the assessments which were completed vide order dated 20.07.2013. The Department contended that there was complete non-cooperation from the petitioner in spite of Notices being issued and opportunities being granted by the Department. According to the Department, the petitioner also did not exercise the option of offering the Bank Guarantee for exercising the Exemption/Remission before the issuance of the Eligibility Certificate and the Certificate of Entitlement which is the mandatory requirement as per the Scheme of 2009. The Department, accordingly, submits that....
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....03 and Notice dated 21-04-2012 was duly issued by the respondents department directing the petitioner to appear before the authorities and to produce books of accounts and other evidences in support of the return filed. Subsequently, on 16-11-2012 another notice was issued directing the petitioner to appear before the authorities. According to the petitioner its authorised representative duly appeared before the authority and verbally submitted that it had been granted exemption under the Industrial Policy and also under the Scheme of 2009, however, the necessary certificates have not yet been received from the issuing authority and therefore further time be granted to the petitioner to produce the exemption certificates. The department thereafter issued Notices for imposition of penalty as there was no compliance of the petitioner in respect of its statutory compliance and in respect of which earlier Notices were issued. Thereafter, vide order dated 20-07-2013 impugned in the present proceeding, the department summarily completed the assessments pending against the petitioner under section 37 of the AVAT Act, 2003. For the assessment year 2010-11, the department raised a demand of....
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....verbally requested them to await for the Eligibility and Entitlement Certificates yet to be received by the petitioner at the relevant point of time and thereafter, proceed with the assessments, is disputed by the department. 13. Under the circumstances, in respect of the non-issuance of Notice by the department as required under section 37 of the before the proceeding 'Best Judgment Assessment', the petitioner has not been able to demonstrate as to how it has been prejudiced by the non-issuance of Notice under section 37 to render entire proceedings illegal, inasmuch as, the petitioner admitted to the receipt of Notice under section 36 as well as show causes prior to issuance of penalty. As such, it is not denied by the petitioner that it was not aware of the Audit Assessments pending before the department. As it is seen from the pleadings that the petitioner has received Eligibility Certificate on 26-08-2013 and entitlement certificate on 25-10-2013, i.e. well after the impugned order being passed in any event the petitioner could not have submitted the said certificate prior to passing of the impugned order. As such, non issuance of Notice contemplated under section 37 of the A....
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....thority and furnish necessary evidences/books of accounts, the department proceeded to complete the assessment as per 'Best Judgment' of the assessing officer, in terms of section 37. Under such circumstances, as discussed above, the non issuance of prior Notice before completing the assessment under section 37 cannot be treated to be sufficient alone to interfere with the orders and demands Notices impugned in the absence of manifest prejudice shown to have been suffered by the petitioner more particularly, when it is the petitioner's pleaded case that the concerned exemption certificate and the certificate of entitlement was received by the petitioner well after the assessment orders passed. 15. It is also seen that there are adequate efficacious remedy available under AVAT Act, 2003 to address the grievances of the petitioner-Company without taking recourse to the remedies provided under Article 226. Although, alternative remedy is not an absolute bar, keeping in view that the petitioner had failed to respond the statutory notices and also as the writ petition seeking quashment of the impugned orders was filed after 3(three) years without justifying the delay, this Court is not....
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.... without considering the prayer of the petitioner. Accordingly, although I respectfully concur with the ratio laid down, however in the facts of the present case, this Judgment will not be applicable. 19. The judgment of the Hon'ble High Court of Jharkhand in the case of Shiva Stone Chips vs- The State of Jarkhand and Ors. is relied upon by the petitioner to support the contention that quasi judicial authorities are also required to follow the settled Principle of Natural Justice. The Hon'ble High Court of Jharkhand in the said case of Shiva Stone Chips vs- The State of Jarkhand and Ors. referred to by the petitioner, also holds that quasi judicial authorities are required to record reasons and to provide opportunity of hearing, the principle of which although not disputed, the same however, is not applicable in the facts of the present case. 20. The petitioner has also relied upon the judgment of the Apex Court in the case of Larsen & Toubro Ltd. Vs State of Jharkhand and Ors. reported in (2017) 13 SCC 780 in support of his contention raised in the writ petition. In the said judgment, the issue involved is the meaning that can be ascribed to the term 'information' in respect of ....
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....ained of is null and void. The Apex Court held that the validity of such order will have to be decided on the touchtone of 'prejudice' caused to the complainant therein. The Apex Court however held that it is only the Courts who are empowered to consider whether any purpose would be served in remanding the case keeping in mind whether any prejudiced is caused to the person against whom the action to be taken. The relevant paragraphs are extracted below: "38. But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straitjacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending ....
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.... to serve no purpose since the "right" result can be secured without according such treatment to the individual. 40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of "prejudice". The ultimate test is always the same viz. the test of prejudice or the test of fair hearing. 44. At the same time, it cannot be denied that as far as courts are concerned, they are empowered to consider as to whether any purpose would be served in remanding the case keeping in mind whether any prejudice is caused to the person against wh....
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.... of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest. (3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice. (4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person. (5) The "prejudice" exception must be more than a mere apprehension or even ....
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....oner filed a representation before the respondent Department dated 28.01.2014 requesting for re-assessment of their tax liability for the assessment year 2010-11. In the said representation, the petitioner stated that the Eligibility Certificate and the Certificate of Entitlement were not issued from the respective department prior to passing of the impugned assessment order and consequently the same could not be produced before the respondent Department prior to the impugned order of assessment being passed. The petitioner-Company represented that the said certificates have since been received and, therefore, the prayer for re-assessment has been made. 26. Upon perusal of the provisions of the AVAT Act, 2003, it is seen that under Section 83, there is a power of rectification under section 83 of the AVAT Act 2003, any authority including Appellate /Revisional Authority or the Appellate Tribunal may on an application or otherwise at any time within three (3) years from the date of any order passed by it, rectify any error apparent on the face of the record. It is also seen from the record that this Court by order dated 24-05-2017 while directing the respondent Department to obtain....