2014 (2) TMI 1142 - HC - VAT and Sales Tax

Challenge to assessment order - Non service of notice - Imposition of penalty - Held that - Three notices were issued to the dealer but he did not appear before the assessing officer. The receipt of the last notice has also been placed on record which shows that the notice was dispatched on July 31 2012 within Agartala itself and the next date of hearing was August 25 2012. The notices were properly addressed and therefore we can draw a legal presumption that notices must have been served upon the assessee. - If an assessee after service of the notice does not appear before assessing officer then the assessing officer is not required to send him another notice to apprise him of such evidence. If the assessee appears before the assessing officer then obviously the assessing officer must bring to his notice the material which is sought to be used against him so that he can respond to the same. However if the assessee chooses not to appear before the assessing officer he is taking a risk and the assessing officer can rely upon the material which he has with him and is not required to send another notice to the assessee specifically bringing to his notice the said material. Admittedly no notice was given to the assessee before imposition of penalty. - A bare perusal of Section 31(5) of the TVAT Act clearly shows that no penalty can be imposed without first issuing notice. We also find that in the three notices issued earlier there was nothing in the said notices to indicate that the assessing officer also intended to impose penalty. - Decided partly in favour of assessee.

Summary

Issues involved:
1. Assessment order challenged without approaching appellate authority.
2. Assessee's grievances regarding reliance on DTR report and penalty imposition without notice.

Analysis:
1. The judgment addressed the challenge against an assessment order without approaching the appellate authority. The court noted that typically, a petition against an assessment order would not be entertained without the assessee first approaching the appellate authority. However, since the appeal had already been admitted, the court proceeded to decide the petition. The assessee raised two main grievances: reliance on a DTR report without notifying the assessee, and imposition of a penalty without issuing a notice as required under section 31(5) of the Tripura Value Added Tax Act, 2004.

2. Regarding the first contention, the court referred to a judgment by the apex court which clarified that the assessing officer is not required to spell out the reasons for the notice in detail. The notice can be in general language without specifying all reasoning. The apex court emphasized that if the assessing officer intends to use specific material against the dealer, the officer must bring it to the dealer's attention to provide an opportunity for explanation. In the case at hand, the court found that three notices were issued to the dealer, but the dealer did not appear before the assessing officer. The court noted that if the assessee does not appear after receiving a notice, the assessing officer is not obligated to send another notice specifically regarding the evidence. The court ruled against the petitioner on this issue.

3. Concerning the second issue, the court observed that no notice was given to the assessee before imposing the penalty, as required under section 31(5) of the TVAT Act. The provision clearly states that a penalty cannot be imposed without first issuing a notice. The court also noted that the earlier notices issued did not indicate an intention to impose a penalty. Consequently, the court partly allowed the petition, setting aside the penalty imposed on the petitioner while upholding the rest of the order. The judgment concluded by disposing of the writ petition.