2012 (9) TMI 908 - HC - VAT and Sales Tax

Non service of notice - Maintainability of appeal - Held that - Perusal of annexure P4 shows that registered A.D. notice sent initially was returned back as the firm was closed. No notice was sent at the registered office of the company at New Delhi. Order dated April 13, 2006 was, thus, passed without giving proper opportunity of hearing to the petitioner-company to put forward its case. The appeal filed came up for hearing after a period of six years and notice was issued to the petitioner-company again at the same address at Rohtak of the counsel and not at the registered office of the company at New Delhi, which is clear from annexure P3. The counsel had not appeared before the committee on February 22, 2012, the date fixed for hearing and the manager of the petitioner-company appeared and prayed for some time but the said request was declined and the order passed by respondent No. 2 was maintained. Since vide the impugned order serious civil consequences have visited the petitioner, it is entitled for a proper hearing. There was no appearance on its behalf and the matter was never decided on the merits but on the basis of the record of the respondents. The petitioner is, thus, entitled to an opportunity of hearing before passing any order against it. W.P. allowed.

Summary

Issues:
Challenge to withdrawal of sales tax exemption under rule 28A of the Haryana General Sales Tax Rules, 1975 based on cessation of manufacturing activity for more than six months; Allegation of lack of proper opportunity for hearing before withdrawal of exemption; Failure to send notices to the registered office of the petitioner; Dismissal of appeal without proper opportunity to present case; Delay in hearing the appeal; Allegation of evading hearing by the petitioner; Justification of withdrawal by the State based on non-appearance of petitioner at hearings.

Analysis:
The petitioner, a private limited company engaged in manufacturing aluminum sections, sought sales tax exemption under rule 28A of the Haryana General Sales Tax Rules, 1975, for the period May 12, 1998, to May 11, 2007. The exemption was granted, but later sought to be withdrawn due to cessation of manufacturing activity for more than six months. The petitioner alleged lack of proper opportunity for a hearing before the withdrawal. Notices were not sent to the registered office of the petitioner, leading to a perceived lack of communication. The appeal process was marred by delays, with the appeal being heard after a significant period, and the petitioner's counsel failing to appear at the scheduled hearing, resulting in dismissal of the appeal.

The State justified the withdrawal based on the petitioner's non-appearance at hearings and attempts to delay proceedings. The court noted that the petitioner's case was not properly heard before the withdrawal decision was made, emphasizing the importance of affording a fair opportunity to present arguments. The court found that the petitioner was entitled to a proper hearing before any adverse orders were passed. Consequently, the court allowed the petition, quashed the withdrawal order and the appeal rejection letter, and directed the petitioner to deposit a sum as costs. The petitioner was instructed to appear before the Lower Level Screening Committee for a fresh decision, ensuring a fair opportunity for a hearing in accordance with the law.