2018 (7) TMI 1660 - HC - VAT and Sales Tax

Principles of Natural Justice - the respondent, without waiting for clarification from the Head of the Department, sought by the petitioner, passed the impugned order without affording personal hearing - Held that - The Head of the Department i. e the Commissioner of Commercial Tax has given clear instruction as to personal hearing. It is mandated in Circular dated 3.2.2014 issued by him - it is mandatory to afford personal hearing even if the objections are not filed by the dealer or not. But in the instant case, no personal hearing was given to the petitioner. When the opportunity of personal hearing has not been given as mandated in the guidelines issued by the Head of the Department, the order of the respondent is vitiated for violation of principles of nature justice - matter remanded to the respondent for fresh consideration - petition allowed by way of remand.

Summary

Issues:
Violation of principles of natural justice by not affording personal hearing before passing the impugned order.

Analysis:
The petitioner, a dealer in Cotton Hank Yarn registered under the Tamilnadu VAT Act, received a pre-revision notice for the assessment years 2008-2009 to 2013-2014. Subsequently, seeking clarification under Section 48A of the Act, the petitioner received a revised pre-assessment notice. Despite requesting time for further clarification, the respondent passed the impugned order without waiting for the clarification from the higher authorities. The Commissioner of Commercial Tax later directed to defer all proceedings until clarification was issued, which was not adhered to by the respondent. The impugned order was passed without affording personal hearing, which was challenged before the Court.

The impugned order highlighted that the petitioner's request for time and clarification was not addressed by the respondent before passing the order. The order was passed without communicating whether the request was granted or rejected, and it was observed that the petitioner did not seek personal hearing or certain clarifications from the Head of the Department. Despite the issuance of clarification by the Commissioner and the Additional Chief Secretary, the order was passed without waiting for the clarification and without providing personal hearing.

The Circular dated 3. 2. 2014 mandated affording personal hearing to dealers within fifteen days of issuing a notice, even if objections were not filed. The failure to provide personal hearing as per the guidelines issued by the Head of the Department was considered a violation of principles of natural justice. Citing a previous judgment, it was emphasized that the failure to submit objections to a notice did not justify denying the opportunity of personal hearing to the assessee. Consequently, the Court set aside the order and directed the respondent to consider the objections filed by the petitioner after affording personal hearing within one month from the date of the Court's order.

In conclusion, the Court allowed the writ petitions, emphasizing the importance of adhering to principles of natural justice by affording personal hearing before passing orders. The respondent was directed to reconsider the matter after providing the petitioner with an opportunity for personal hearing within a specified timeframe.