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2007 DIGILAW 710 (JHR)

R. A. Himatsingka & Co. v. State of Jharkhand

2007-09-05

D.G.R.PATNAIK, M.Y.EQBAL

body2007
Order In this application, the petitioner has challenged the ex parte order dated 13.6.2007 passed by the Deputy Commissioner, Commercial Taxes, Dumka Circle, Dumka, exercising appellate powers under the Bihar Finance Act. It appears that against the two separate orders passed by the assessing officer for the financial year 2002-03, the petitioner preferred an appeal before the Deputy Commissioner, Commercial Taxes (Appeals) in which the order impugned in this application has been passed. 2. Mr. Poddar, learned counsel for the petitioner, has assailed the impugned order on the ground of violation of the principles of natural justice. Learned counsel submits that without giving the petitioner an opportunity of hearing, the appellate authority not only affirmed the order of the assessing officer, but also remitted the matter with direction to the assessing officer to initiate penalty proceedings and prosecution under the said Act. 3. Mr. Modi, learned counsel appearing on behalf of the State submitted that there is a statutory provision for revision in the Finance Act and therefore this Court should not entertain this writ application. 4. We have perused the impugned order passed by the appellate authority. From perusal of the impugned order, it appears that on 10.1.2007, the memorandum of appeal was filed by the appellant. On 17.1.2007 the appellate authority directed for listing of the appeal after notice to the appellant and fixed the appeal for orders on 29.1.2007. Thereafter, on 28.2.2007 and 30.3.2007, it reveals that final order could not be passed as the appellate authority was otherwise busy and it passed the final order on 13.6.2007. 5. Rule 31 of the Bihar Sales Tax Rules, 1983 lays down the procedure for disposal of appeals by the appellate authority. Sub-rule (1) of Rule 31 provides that appeal shall be disposed of after giving reasonable opportunity to the appellant. Sub-rule (2) empowers the appellate authority to summarily reject the appeal. Sub-rule (3) provides that when an application for revision is admitted for hearing on merit, the appellate authority or the revisional authority shall, after giving the parties concerned a reasonable opportunity of being heard, fix a date for passing the final order. It appears that the appellate authority has not at all followed the procedures provided in Rule 31 of the aforesaid Rules. It appears that the appellate authority has not at all followed the procedures provided in Rule 31 of the aforesaid Rules. He has passed the impugned order ex parte not only against the procedure provided in the said Rule, but also violating the principles of natural justice. In such a case, the remedy of a statutory appeal or revision cannot be a bar for the High Court to entertain application under Article 226 of the Constitution of India. 6. For the reasons aforesaid, the impugned ex parte order passed by the Deputy Commissioner, Commercial Taxes, Dumka cannot be sustained in law. This writ petition is therefore allowed. The impugned order dated 13.6.2007 is set aside and the matter is remitted back to the appellate authority to pass final order on merits after giving an opportunity of hearing to the appellant.