2019 (2) TMI 1777 - HC - VAT and Sales Tax

Recall of assessment - affidavit for issuing advisory to the assessing authorities not to indulge in adventurism in their quasi-judicial discharge which necessitates transparency and fair play in their action but the duty has been discharged by junior officers of the Department - HELD THAT - The illegality in the proceeding is writ large and in the nature of the affidavit so filed by the respondents acknowledging the default, it becomes a mere completion of formality to quash the assessment order dated March 29, 2018 together with the demand notice dated March 30, 2018 impugned at annexures 2 and 5 respectively which are accordingly quashed and set aside. Since we have not found any default in the initiation of the proceedings, we allow the assessing authority to move afresh and with such words of caution, we direct that the petitioner would appear before the assessing authority, the Deputy Commissioner, State Taxes, respondent No. 3 on February 26, 2019 at 11 a. m. when he shall proceed to fix up the date of hearing on the assessment proceeding and pass appropriate orders in accordance with law after due opportunity of hearing which order be passed within one week of the appearance of the petitioner on February 26, 2019. Petition allowed.

Summary

Issues:
Challenge to assessment order and demand notice under Bihar Value Added Tax Act for the assessment year 2012-13.

Analysis:

1. Preliminary Objection on Alternative Remedy:
The respondent raised a preliminary objection regarding the availability of an alternative remedy. The petitioner argued that the assessment proceeding had irregularities, including an unsigned order for adjournment and an ex-parte assessment order. The court noted the seriousness of the matter and required an answer from the superior authorities. A supplementary counter-affidavit was filed admitting the lapse, leading to the recall of the assessment order dated March 29, 2018.

2. Recall of Assessment Order:
The court considered the provisions of section 76 along with rule 48 of the Rules. The authority responsible for the assessment recalled the order upon realizing the irregularities in the process. The court acknowledged the seriousness of the situation and expected the Commissioner, State Tax, to issue advisory to ensure transparency and fair play in the quasi-judicial discharge of duties.

3. Quashing of Assessment Order and Demand Notice:
The court found the illegality in the proceedings evident, leading to the quashing of the assessment order dated March 29, 2018, and the demand notice dated March 30, 2018. The respondents' acknowledgment of the default in their affidavit further supported the decision to set aside the impugned documents.

4. Direction for Fresh Assessment Proceeding:
While no default was found in the initiation of the proceedings, the court allowed the assessing authority to conduct a fresh assessment. The petitioner was directed to appear before the Deputy Commissioner, State Taxes, for a new hearing on February 26, 2019. The authority was instructed to pass appropriate orders within one week of the petitioner's appearance. Any tax/penalty amount already realized would be subject to the outcome of the fresh proceedings, ensuring prompt refund if the petitioner is found entitled.

5. Conclusion:
With the above observations and directions, the court allowed the writ petition, addressing the irregularities in the assessment process and providing a framework for a fair and transparent reassessment procedure.