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2014 DIGILAW 615 (GAU)

KAMAKHYA COARTAR INDUSTRIES v. STATE OF ASSAM

2014-06-11

A.M.SAPRE, UJJAL BHUYAN

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JUDGMENT : - A.M. Sapre, J. By filing this revision petition under Section 81(1) of the Assam Value Added Tax Act, 2003, the petitioner (Assessee/Dealer) seeks to challenge the order dt 1.8.2013 passed by the Chairman, Assam Board of Revenue at Guwahati (hereinafter called for brevity – ‘The Board’) in Case No.53STA/13 & 54STA/13. By impugned order, the Board dismissed the petitioner’s two appeals being 53 and 54 STA of 2013 in limini which arose out of the order dt 8.5.2013 passed by Joint Commissioner of Taxes Assam in relation to order passed in assessment year 2007-2008 by the assessing authority. So the short question which arises for consideration in this revision is whether Board was justified in dismissing the petitioner’s appeals in limini ? We have heard the learned counsel for the parties and have also perused the record of the case including the order impugned in this revision. Having heard the learned Counsels and upon perusal of the record of the case, we have formed an opinion to allow the revision, set aside the order of the Board impugned in this revision and remand the case (appeals) to the Board for their hearing on merits in accordance with law after issuing notice to the respondent – i.e. State and then to pass a reasoned order meeting the case of the petitioner (appellant before the Board) and recording finding on each issue raised by the petitioner in their appeal. Since now the appeals are being remanded to the Board for their disposal on merits in accordance with law and hence we do not consider it proper to record any finding on merits and leave the Board to record the findings on merits after hearing all the parties concern. We however only mention those facts which are necessary for the disposal of this revision and which would justify the remand order. The revision petitioner is an assessee/dealer under the Assam Value Added Tax Act and is engaged in the business of Coal Tar. The petitioner suffered adverse order dt 8.5.2013 passed by Joint Commissioner of Taxes in their revision petition which they had filed arising out of the assessment order passed in the assessment year 2007-2008 by the assessing authority. The petitioner filed two appeals being 53 and 54 STA of 2013 before the Board against the revisionary order dated 8.5.2013. The petitioner suffered adverse order dt 8.5.2013 passed by Joint Commissioner of Taxes in their revision petition which they had filed arising out of the assessment order passed in the assessment year 2007-2008 by the assessing authority. The petitioner filed two appeals being 53 and 54 STA of 2013 before the Board against the revisionary order dated 8.5.2013. These two appeals were heard by the Chairman of the Board on 1.8.2013 on the question of admission and were dismissed in limini without notice to the department/revenue holding that it did not involve any prima facie case. The concluding part of the impugned order reads as under : “As the appellant has not been able to make out a prima facie case, the appeal is not admitted and is dismissed.” It is against this order of the Board; the assessee/dealer felt aggrieved and filed this revision petition. In our considered opinion, the Board erred in dismissing the appeals of the petitioner at its threshold and without issuing notice to the department/revenue. In our view, having regard to the nature of controversy, and the issues raised by the petitioner in appeals ,this was not a case which was capable of being dismissed at the preliminary first hearing itself and that too in limini. The right to file an appeal is a statutory right given to the assessee/dealer under the Act. It is therefore expected from the appellate court (Board in this case) which is the last court of appeal on facts to apply its mind to facts and law applicable to the case and then decide the appeal on all issues arising in the case after hearing both the parties to the appeal keeping in view the legal provisions and the case law holding the field on the issue. A reasoned bi parte order meeting all the issues urged is the sin-qua –none for any judicial order. To dismiss the appeal without notice to other side and, that too, without examining the issues arising in the case and recording a categorical finding as to why the order impugned in the appeal is good or bad cannot be countenanced and not sustainable in law. It only shows causal disposal of a lis involved in the appeal. To dismiss the appeal without notice to other side and, that too, without examining the issues arising in the case and recording a categorical finding as to why the order impugned in the appeal is good or bad cannot be countenanced and not sustainable in law. It only shows causal disposal of a lis involved in the appeal. Indeed this has been the consistent view of the Supreme Court while dealing with the powers of appellate court and no authority is needed in support of this proposition. Though we find that the Board did discuss some issues briefly, yet in our view such cursory discussion was not sufficient for disposal of the appeal in limini. The dismissal of appeal at the preliminary stage without notice to the other side and meeting all the issues raised by the petitioner in their appeal while challenging the legality and correctness of the order dt 8.5.2013 passed by the joint commissioner of Taxes cannot be upheld. It is due to this error noticed in the impugned order, we are unable to sustain the impugned order and feel inclined to remand the case to the Board for deciding the appeal afresh on merits in accordance with law. In the light of foregoing discussion, the revision petition succeeds and is allowed. Impugned order dt 1.8.2013 passed by the Board (annexure – XI) is set aside. As a consequence, the appeals out of which this revision arises are restored to file before the Board with a direction to The Board to decide the appeal afresh on merits in accordance with law after admitting the appeal for final hearing and serving notice of the appeals to the respondent/department for their final disposal. Needless to observe the Board would pass a reasoned order keeping in view the observations made above by meeting all the issues raised by the petitioner (appellant) in their appeal without being influenced by our observations on “merits” which we have refrained from making having formed an opinion to remand the case to the Board for its rehearing on merits. Let the appeals be decided by the Board within 6 months as an outer limit. A copy of this order be submitted by the parties to the Board within 2 weeks to enable the Board to decide the appeals as directed. No cost.