2018 (4) TMI 1733 - HC - VAT and Sales Tax

Principles of natural justice - order passed ex-parte - assessment under the Bihar Value Added Tax Act, 2005 - HELD THAT - Even though the order-sheet indicates that the notice has been served and in spite of telephonic communication being made, the assess is not present, the order further indicates that the assessment order is being passed on the same date i.e. 8.9.2016,but, surprisingly, for a period of 9 months nothing is done and the order of assessment is passed on 12.6.2017. It is a case where the proceedings were to be held on 8.9.2016. The order-sheet indicates that the order has been passed, but the order seems to have been passed on 12.6.2017. If the matter could be kept pending for 9 months before the Assessing Officer, the Officer should have well issued a fresh notice to the assessee to give his say. It is a fit case where the matter be remanded back to the Assessing Officer for conducting the assessment proceedings afresh in accordance with law - Appeal allowed by way of remand.

Issues involved:
1. Quashing of assessment order passed by the Deputy Commissioner, Commercial Taxes, Bhabua for the financial year 2013-14 under the Bihar Value Added Tax Act, 2005.
2. Violation of principles of natural justice in the assessment proceedings.
3. Petitioner's right to challenge the assessment order through a writ petition without resorting to the statutory remedy of appeal.
4. Arguments regarding the issuance of notice, absence of the assessee, and delay in passing the assessment order.
5. Decision on remanding the matter back to the Assessing Officer for fresh assessment proceedings.

Analysis:

1. The petitioner filed a writ petition under Article 226 of the Constitution seeking the quashing of the assessment order passed by the Deputy Commissioner, Commercial Taxes, Bhabua for the financial year 2013-14, which included Bihar Value Added Tax, interest, and penalty totaling &8377; 22,16,659. The petitioner contended that the assessment was conducted ex parte without granting them an opportunity, alleging a violation of natural justice principles.

2. The petitioner argued that the ex parte assessment order should be quashed due to the violation of natural justice principles. The petitioner claimed that the proceedings were held without giving them a chance to present their case, as evidenced by the timeline of events from the issuance of the notice to the passing of the assessment order. The petitioner asserted their right to challenge the assessment through a writ petition without being obligated to pursue the statutory remedy of appeal.

3. The respondent's counsel refuted the petitioner's contentions, emphasizing that the petitioner was duly notified and failed to appear before the Assessing Officer despite communication attempts. The respondent argued that since the petitioner had statutory remedies of appeal, second appeal, and revision available, there was no need for the court's intervention.

4. Upon hearing both parties, the court noted discrepancies in the assessment process, particularly the delay between the notice date and the actual passing of the assessment order. The court observed that despite the initial notice and communication attempts, the order was unexpectedly delayed for nine months without further engagement with the assessee. The court found this delay unjustified and indicated that the Assessing Officer should have issued a fresh notice to allow the assessee to present their case.

5. Consequently, the court decided to remand the matter back to the Assessing Officer for conducting fresh assessment proceedings in compliance with the law. The court allowed the appeal, quashed the assessment order dated 12.6.2017, and directed the petitioner to appear before the Assessing Officer with all relevant materials on a specified date. Additionally, the court ordered the release of the petitioner's bank account from any coercive measures until the assessment process is finalized by the Assessing Officer.

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