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Allahabad High Court · body

2015 DIGILAW 3247 (ALL)

S. K. P. K. Enterprises v. State of U. P.

2015-10-14

SURYA PRAKASH KESARWANI, TARUN AGARWALA

body2015
JUDGMENT We have heard, Sri Ashok Kumar, the learned counsel for the petitioner and Sri C.B. Tripathi, the learned counsel for the State. 2. The petitioner applied for registration for manufacture and sale of interlocking bricks on 16.4.2015. The registration was granted on 12.6.2015. The petitioner also applied before the Assessing Officer for issuance of a declaration Form 38 for purchase of machinery for the purpose of manufacture of interlocking bricks. The Assessing Authority allowed the same based on which purchases were effected from a firm in Gujarat on 7.5.2015. The petitioner alleges that the machinery reached the premises of the petitioner and was installed in the last week of May 2015. The petitioner further alleges that manufacturing process started in July 2015. 3. Notice dated 2.7.2015 for initiating provisional assessment and penalty under Section 54(1) was issued by the Assessing Officer. The notices for provisional assessment was issued on the strength that the premises is for an ice factory and not for manufacture of interlocking bricks and the penalty notice was issued on this ground that return had not been filed on due date. Since the assessee did not appear, a provisional Assessment Order was passed on 14.7.2015 and a penalty order was passed on 21.7.2015. The petitioner has filed the recall application for recall of the provisional Assessment Order as well as the penalty order which is pending consideration and while the recall application was pending the Assessing Officer passed a Rectification Order on 13.8.2015. This order is also alleged to have been passed ex parte. 4. Not only this a notice under Section 17(1) of the U.P. Trade Act was also issued on 13.7.2015 fixing 15.7.2015 for appearance of the petitioner to show cause why the Registration should not be cancelled. Since the petitioner did not appear, the Registration was cancelled by an order dated 5.8.2015. The petitioner being aggrieved by all the aforesaid orders, namely, the Provisional Assessment Order, the Rectification Order, the Penalty Order and the Order for Cancellation of the Registration, has filed the present writ petition. 5. Having heard the learned counsel for the parties, and having perused the affidavits, we are of the opinion that since a recall application has been filed for recall of the ex parte provisional Assessment Order as well as the Order of Penalty, this Court is not inclined to interfere at this stage. 5. Having heard the learned counsel for the parties, and having perused the affidavits, we are of the opinion that since a recall application has been filed for recall of the ex parte provisional Assessment Order as well as the Order of Penalty, this Court is not inclined to interfere at this stage. We, accordingly, direct the Assessing Officer to pass appropriate orders on the recall application after giving the petitioner an opportunity of hearing within four weeks from the date of presentation of the certified copy of the order. 6. With regard to the Rectification Order passed under Section 31 dated 12.8.2015, we also permit the petitioner to move a recall application within two weeks from today. If the said application is filed, the said recall application will also be considered and decided within the aforesaid period of four weeks after giving an opportunity of hearing. 7. In so far as, the cancellation of the registration certificate is concerned, we find that no reason has been given in the impugned order. Consequently, on this short ground the impugned order cancelling the registration can not be sustained and is accordingly quashed. It would be open to the Assessing Officer to pass a fresh order after giving due notice and an opportunity of hearing. 8. In view of the aforesaid, the writ petition is partly allowed. 9. The presence of the Assessing Officer is discharged.