RK Colour Lab and Studio v. Additional Commissioner of Commercial Taxes, Zone I, Bangalore
2011-08-05
N.KUMAR, RAVI MALIMATH
body2011
DigiLaw.ai
JUDGMENT N. Kumar , J.—The assessee has preferred this appeal challenging the order passed by the revisional authority who has set aside the order passed by the Appellate Commissioner and restored the assessment order passed by the assessing authority on the penalty proposal. The grievance of the appellant is that the notice under section 15(2) was issued on May 20, 2010, which was served on the assessee on June 25, 2010 giving him 10 days lime to file their objections. They filed the objections within 10 days, i.e., on June 1, 2010. However, without affording an opportunity to the assessee to substantiate his claim, the impugned order is passed on June 18, 2010. Therefore, the order passed is in violation of principles of natural justice and contrary to section 15(2) of the Karnataka Entry Tax Act, 1979. 2. Per contra, the learned Government Advocate submits that the notice issued to the assessee makes it very clear that a personal opportunity of being heard is allowed and now, he cannot complain of denial of such an opportunity and therefore he submits that on that ground the impugned order cannot be set aside. 3. Section 15(2) which deals with the revisional power reads as under : 15. (2) The Additional Commissioner may on his own motion call for and examine the record of any proceedings under this Act, and if he considers that any order passed therein by (a Joint Commissioner, or an appellate authority of the rank of a Deputy Commissioner) is erroneous in so far as it is prejudicial to the interests of revenue, he may, if necessary, stay the operation of such order for such period as he deems fit and after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon enhancing or modifying the assessment or cancelling the assessment or directing a fresh assessment. A perusal of the aforesaid provision makes it clear that it gives an opportunity to the assessee of being heard and after making or causing to be made such inquiry as he deems necessary, pass such orders thereon enhancing or modifying the assessment or cancelling the assessment or directing for fresh assessment. 4.
A perusal of the aforesaid provision makes it clear that it gives an opportunity to the assessee of being heard and after making or causing to be made such inquiry as he deems necessary, pass such orders thereon enhancing or modifying the assessment or cancelling the assessment or directing for fresh assessment. 4. The first paragraph in the notice reads as under : The dealer is requested to file objections within 10 days from the date of receipt of this notice. He is also requested to avail of the personal opportunity of being heard within the above time allowed. No separate opportunity or endorsement will be issued for the above opportunities. He is also informed to appear in case of any adjournments required. Adjournment will be granted after verification of such claim. From the aforesaid provision of law and the way the first paragraph of the notice is worded, it is clear that the Additional Commissioner was conscious that the assessee has a right of personal hearing. Once the statute confers a right of personal hearing, the question of the assessee making a request for personal hearing and when such a request is not made, the authority not granting such personal hearing request would not arise. After objections are filed, the Additional Commissioner ought to have given a personal hearing to the assessee by fixing a date of hearing. Thereafter, it is left to his discretion to grant an adjournment or not. If the Additional Commissioner had heard the assessee by giving a date for their personal appearance, it would have met the requirements as contemplated under the aforesaid provision. Even otherwise the wordings in the first paragraph in the notice, do not satisfy the requirements. As such the opposed impugned order passed without affording a reasonable opportunity of being heard to the assessee is not only contrary to the express provision but also is violative of principles of natural justice and cannot be sustained. Hence, we pass the following : ORDER The appeal is allowed. The impugned order is hereby set aside. Now the entire matter is remitted back to the Additional Commissioner for fresh hearing. The assessee shall appeal before the Additional Commissioner on August 24, 2011 at 11 a.m., without waiting for any notice from the Additional Commissioner.
Hence, we pass the following : ORDER The appeal is allowed. The impugned order is hereby set aside. Now the entire matter is remitted back to the Additional Commissioner for fresh hearing. The assessee shall appeal before the Additional Commissioner on August 24, 2011 at 11 a.m., without waiting for any notice from the Additional Commissioner. On such appeals, the Additional Commissioner shall hear the assessee or his representatives and then proceed to pass orders on the merits in accordance with law.