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2006 DIGILAW 785 (PAT)

Sonia Bangles Store v. State Of Bihar

2006-08-31

AFTAB ALAM, S.K.KATRIAR

body2006
Judgment 1. Heard Mr. S.D. Sanjay, learned counsel for the petitioner and Mr. Raj Nandan Prasad, JC to AAG representing the State, 2. The petitioner, a proprietorship firm, is a dealer in bangles. It has come to this court challenging the assessment order for the assessment period 2002-03 passed against it by the Assistant Commissioner of Commercial Taxes on 19.7.2005 under Section 17(3) of the Bihar Finance Act. The ex parte order creates a demand of Rs. 2,86,392.43p. against the petitioner. Mr. S.D. Sanjay submitted that the petitioner deals in bangles made of plastic and glass that were totally exempt from payment of sales tax, and for the preceding two assessment periods his sales tax liability was assessed as nil. He further submitted that the petitioner was prevented from appearing and producing the relevant papers before the Assistant Commissioner and it was for that reason that such a heavy demand was made against it under the ex parte order. Mr. Sanjay pleaded for an opportunity to the petitioner to place the relevant books of accounts and other relevant materials before the Assistant Commissioner. 3. From the materials on record it appears that a notice was sent to the petitioner asking its representative to appear before the Assistant Commissioner on 8.11.2004 (Annexure B to the counter affidavit). On behalf of the petitioner it is stated that in response to the notice the petitioners representative duly appeared in the office of the Assistant Commissioner but the officer did not hold court on that day. The file was finally put up before the officer on 1.7.2005. On that day no one was present on behalf of the petitioner. From the order-sheet it appears that on 1.7.2005 the proceeding was adjourned on 19.7.2005 and at the margin of the order there is signature of one Bishnu Agrawal dated 8.7.2005. JC to AAG submitted that it would thus appear that 19.7.2005 was fixed as the next date in the case in presence of the petitioners representative. Mr. Sanjay submitted that Bishnu Agrawal was not the authorised representative and the petitioner was not aware of the next date fixed in the proceeding. We find it difficult to accept the submission that the officer would get the signature on the margin of the order-sheet of a person having no connection with the assessee and we are satisfied that Bishnu Agrawal was representing the petitioner. We find it difficult to accept the submission that the officer would get the signature on the margin of the order-sheet of a person having no connection with the assessee and we are satisfied that Bishnu Agrawal was representing the petitioner. However, having regard to the fact that the assessment order was passed without examining the petitioners books of accounts and other relevant materials we are of the view that it would cause unnecessary and avoidable hardship to ask the petitioner to prefer an appeal after depositing 20% of the demand. We are satisfied that it would be in fitness of things that a fresh order be passed in the proceeding after giving the petitioner a proper opportunity to place its case. We accordingly set aside the order dated 19.7.2005 (Annexure 4) passed by the Assistant Commissioner, Commercial Taxes and direct him to pass a fresh order in the proceeding. In order to facilitate an eaarly disposal of the matter the petitioner is directed to appear before the Assistant Commissioner within one month from today with a copy of this order. The Assistant Commissioner shall fix a date for hearing in his presence so as to pass a final order in the proceeding within three months from the date of the first appearance. 4. In the result, this writ petition is allowed. There will be no order as to costs.