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Allahabad High Court · body

2023 DIGILAW 258 (ALL)

Ans Handicrafts v. Commissioner, Commercial Taxes

2023-01-25

J.J.MUNIR, RAJESH BINDAL

body2023
JUDGMENT : By the Court.-By means of the instant writ petition, the petitioner is challenging the order dated March 11, 2019 vide which the registration certificate of the petitioner has been cancelled. 2. Learned counsel for the petitioner submitted that petitioner is a registered firm engaged in trading of hardware and aluminium goods. It was duly registered under U.P. Goods and Service Tax. A survey was conducted on February 11, 2019 at the business premises of the petitioner wherein 29 loose papers were found. As according to the Department, certain discrepancies were found in the stock, the turn-over of the petitioner was enhanced on the presumption that there were suppressed sales. Notice for assessment was issued under Section 74 of U.P. Goods and Service Tax Act, 2017 (hereinafter referred to as ''the Act'') for the period April' 2018 to February' 2019. Huge demand of more than ¹ 6 crore was raised. The petitioner preferred appeal, which was finally partially accepted. On the other hand, a notice was issued to the petitioner on February 26, 2019 to show-cause as to why the registration certificate of the petitioner be not cancelled. Nothing was mentioned therein as to the reasons for issuing the notice except the generic term ''In case, Registration has been obtained by means of fraud, wilful misstatement or suppression of facts.'' Without affording opportunity of hearing to the petitioner, as there were no ground mentioned for cancellation of registration, and without assigning any reason, order dated March 11, 2019 was uploaded on the website cancelling the registration of the petitioner. The argument raised is that the notice issued by the Department to the petitioner has to be action oriented giving complete details on the basis of which action is proposed and after due opportunity of hearing, a reasoned order is required to be passed. In the case in hand, both are lacking, hence the order deserves to be set aside. In support of the aforesaid contentions, reliance is placed on Bajrang Trading Ltd. v. State of U.P. and others, (2020) UPTC (104) 400 and Balaji Enterprises v. Principal Additional Director General, (2022) 80 MTNDX 448 (Delhi). 3. In the case in hand, both are lacking, hence the order deserves to be set aside. In support of the aforesaid contentions, reliance is placed on Bajrang Trading Ltd. v. State of U.P. and others, (2020) UPTC (104) 400 and Balaji Enterprises v. Principal Additional Director General, (2022) 80 MTNDX 448 (Delhi). 3. On the other hand, learned counsel for the respondents submitted that the fact by itself that a survey was carried out at the premises of the petitioner and certain loose papers were recovered on the basis of which assessment was framed clearly establishes that the petitioner was indulging in unaccounted sales and was evading tax. Immediately after the survey, the notice was issued to the petitioner to show-cause as to why registration certification of the petitioner be not cancelled. The reasons are well mentioned in the notice. Due opportunity of hearing was afforded to petitioner which the petitioner failed to avail of and the order of cancellation of certificate was passed. There is no illegality therein. 4. Heard learned counsel for the parties and perused the paper-book. 5. To appreciate the contentions raised by learned counsel for the parties, it would be apt to first extract the shows cause notice issued to petitioner on February 26, 2019. The reasons assigned in the show-cause notice proposing cancellation of registration are extracted below: ''In case, Registration has been obtained by means of fraud, wilful misstatement or suppression of facts.'' 6. The petitioner was called upon to appear on March 7, 2019. 7. The order passed in furtherance to the aforesaid show-cause notice on March 11, 2019 is extracted below: ''Order for Cancellation of Registration This has reference to your reply dated 8.3.2019 in response to the notice to show-cause dated 26.2.2019 whereas no reply to notice to show-cause has been submitted. The effective date of cancellation of your registration is 26.2.2019. Determination of amount payable pursuant to cancellation: Accordingly, the amount payable by your and the computation and basis thereof is as follows: The amounts determined as being payable above are without prejudice to any amount that may be found to be payable you on submission of final return furnished by you. You are required to pay the following amounts on or before 21.3.2019 failing which the amount will be recovered in accordance with the provisions of the Act and rules made thereunder. You are required to pay the following amounts on or before 21.3.2019 failing which the amount will be recovered in accordance with the provisions of the Act and rules made thereunder. Head Central Tax State Tax/ UT Tax Integrated Tax Cess Tax 0 0 0 0 Interest 0 0 0 0 Penalty 0 0 0 0 Others 0 0 0 0 Total 0.0 0.0 0.0 0.0 8. A perusal of the aforesaid order passed by the authority concerned shows that there is total non application of the mind as the order is bereft of any reason, whatsoever. Even the facts of the case have not been referred. In the absence of brief facts and the reasons for coming to a conclusion, it is not possible for the next higher Court or authority to appreciate as to what weighed with the authority concerned to reach the conclusion and as to whether there was application of mind while passing the order or the order is arbitrary. 9. Hon'ble the Supreme Court in Kranti Associates Private Limited v. Masood Ahmed Khan, (2010) 9 SCC 496, while referring to its earlier judgments in Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala, AIR 1961 SC 1669 ; Som Datt Datta v. Union of India, AIR 1969 SC 414 ; Bhagat Raja v. Union of India, AIR 1967 SC 1606 ; Travancore Rayon Ltd. v. Union of India, (1969) 3 SCC 868 ; Mahabir Prasad Santosh Kumar v. State of U.P, (1970) 1 SCC 764 ; Keshav Mills Co. Ltd. v. Union of India, (1973) 1 SCC 380 ; Union of India v. Mohan Lal Capoor, (1973) 2 SCC 836 ; Woolcombers of India Ltd. v. Workers Union, (1974) 3 SCC 318 ; Siemens Engg. and Mfg. Co. of India Ltd. v. Union of India, (1976) 2 SCC 981 ; Maneka Gandhi v. Union of India, (1978) 1 SCC 248 ; Rama Varma Bharathan Thampuram v. State of Kerala, (1979) 4 SCC 782 ; Gurdial Singh Fijji v. State of Punjab, (1979) 2 SCC 368 ; H.H Shri Swamiji of Shri Amar Mutt v. Commr., Hindu Religious and Charitable Endowments Deptt., (1979) 4 SCC 642 ; Bombay Oil Industries (P) Ltd. v. Union of India, (1984) 1 SCC 141 ; Ram Chander v. Union of India, (1986) 3 SCC 103 ; Star Enterprises v. City and Industrial Development Corpn. of Maharashtra Ltd., (1990) 3 SCC 280 ; S.N Mukherjee v. Union of India, (1990) 4 SCC 594 ; Maharashtra State Board of Secondary and Higher Secondary Education v. K.S Gandhi, (1991) 2 SCC 716 ; M.L Jaggi v. MTNL, (1996) 3 SCC 119 and Charan Singh v. Healing Touch Hospital, (2000) 7 SCC 668 , opined that every order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must be a speaking order. It must not be like the ''inscrutable face of a sphinx''. The superior Court cannot effectively exercise its power of judicial review unless in the order impugned, facts and reasons have been stated in detail. Merely giving an opportunity of hearing is not enough. Wherever an order can be subject to appeal or judicial review, the necessity to record reasons is even greater. It ensures that the decision is not a result of caprice, whim or fancy but was arrived at after considering the relevant facts and the law. It enables an aggrieved party to demonstrate before the higher Court that the reasons on which his claim has been rejected, are erroneous. It operates as a deterrent against possible arbitrary action by any authority invested with judicial power. The aim is to prevent unfairness or arbitrariness in reaching conclusions. Reasons are the links between the material1s on which certain conclusions are based and the actual conclusions. The faith of the people in administrative authorities can be sustained only if they act fairly and dispose of the matters before them by well-considered orders. 10. Following the aforesaid judgment in Kranti Associates Private Limited's case (supra), Hon'ble the Supreme Court in ORYX Fisheries Private Ltd. v. Union of India, (2010) 13 SCC 427 , said: ''39. On the requirement of disclosing reasons by a quasi-judicial authority in support of its order, this Court has recently delivered a judgment in the case of Kranti Associates Pvt. Ltd. and another v. Sh. Masood Ahmed Khan and others on 8th September 2010. 40. In M/s. Kranti Associates (supra), this Court after considering various judgments formulated certain principles in para 51 of the judgment which are set out below: a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions. 40. In M/s. Kranti Associates (supra), this Court after considering various judgments formulated certain principles in para 51 of the judgment which are set out below: a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions. c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. g. Reasons facilitate the process of judicial review by superior Courts. h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and transparency. k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or 'rubber-stamp reasons' is not to be equated with a valid decision making process. m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya v. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, ''adequate and intelligent reasons must be given for judicial decisions''. o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of ''Due Process''. 11. In view of the above binding authorities and taking into account the fact that the order impugned in the case is hand is totally unreasoned, non speaking and shows no application of mind, in our considered opinion, the same cannot be sustained. 12. As a result, the writ petition is allowed. Impugned order dated March 11, 2019, Annexure-3 to the writ petition, is hereby quashed with liberty to the authority to proceed again against petitioner in accordance with law.