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2011 DIGILAW 550 (JK)

Balkaran Wine Shop v. Dy. Commissioner

2011-10-18

M.K.Hanjura

body2011
1. The appellant, a registered dealer, for the sale of IMFL Beer, under the Jammu and Kashmir General Sales Tax Act, 1962, is aggrieved by the order dated 12-01-2011 of the Dy. Commissioner, Commercial Taxes (Appeals), Jammu, for the accounting year 2004-05. He has contended in his appeal that the original order of assessment under section 7(8) of the Jammu and Kashmir General Sales Tax Act, 1962, was passed on 24-04-2007, whereby the returns filed and tax collected and paid by him, were accepted. Subsequently this assessment order was re-opened by the Assessing Authority and the taxable sale was re-determined and penalty and interest were imposed on him by the Assessing Authority. He assailed this order of the Assessing Authority in an appeal before the Ld. Dy. Commissioner, Commercial Taxes (Appeals) (Appellate Authority), Jammu. After looking into the entire controversy, the Ld. Dy. Commissioner, Commercial Taxes (Appeals) (Appellate Authority), Jammu set aside the order of the Assessing Authority on the following grounds:- "The Assessing Authority while passing the impugned order has failed to discuss the issues raised by the appellant in his reply. He has rejected the reply without assigning any reasons for the rejection. The impugned order is therefore non-speaking. The obligation to give reasons forms a part of natural justice and springs from constitutional Provisions. In view of the aforementioned facts, the impugned order is set aside alongwith the orders of interest and penalty. The case is remanded to the Assessing Authority for deciding the matter afresh giving due reverence to basic principles of jurisprudence". 2. The order of the Appellate Authority makes it abundantly clear that the Assessing Authority ought to have taken stock of the entire pleadings which he has not done. The Appellate Authority has further held that the Assessing Authority has rejected the reply of the appellant without giving any reasons. It has also been held that the order passed by the Assessing Authority is a non speaking one that violates the principle of natural Justice and the Assessing Authority has been directed to pass a fresh order after due adherence to the principle of fair play and justice. In view of the rational explanation of the Appellate Authority about all the pros and cons of the case, the order passed by her does not require any interference. In view of the rational explanation of the Appellate Authority about all the pros and cons of the case, the order passed by her does not require any interference. The appeal of the appellant has been accepted by the Ist Appellate Authority and as such there was no reason to assail this order in an appeal before this forum when the grievances of the appellant have been redressed. 3. Viewed in the context of what has been said above the appeal of the appellant is dismissed. Record summoned, if any, be returned forthwith. Record, summoned, if any, be returned forthwith. File be consigned to records after its due completion. A copy of this order be provided to the appellant with utmost dispatch. Announced.