9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (3) TMI 82 - HC - VAT / Sales TaxMaintainability of petition - petition was dismissed on the ground that the Court could not exercise its jurisdiction under Article 226 of The Constitution of India - Levy of penalty respectively for the assessment years 2008- 09 and 2013-14 as well as the consequential garnishee orders - HELD THAT - It would be highly beneficial to refer to the celebrated decision of the Constitution Bench of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. Vs. Union of India 1996 (12) TMI 50 - SUPREME COURT wherein it was held that the jurisdiction of the High Courts under Article 226 and that of the Hon'ble Supreme Court under Article 32 of The Constitution of India could not be circumscribed by the provisions of the Enactment (Central Excise Act) and they would certainly have due regard to the legislative intent evidenced by the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the Act. Further, the Court directed that the writ petition would be considered and disposed of in the the light of and in accordance with the provisions of Section 11B of the Central Excise Tax Act and for such a reason, the power under Article 226 of The Constitution of India has to be exercised to effectuate rule of law and not for abrogating it. Thus, the observation of the learned Single Judge to the effect that there is absolute bar for entertaining a writ petition does not reflect the correct legal position. Hence, we are inclined to interfere with the observation made in the impugned order. Whether the appellant's case would fall under any one of the exceptions, which have been carved out by various decisions of the Hon'ble Supreme Court for exercise of jurisdiction under Article 226 of The Constitution of India, when there is a statutory appellate/revisional remedy available to the aggrieved person? - Violation of principles of Natural Justice - HELD THAT - On a perusal of both the orders dated 30.1.2014 and 16.9.2014 respectively for the assessment years 2008-09 and 2013- 14 passed under the provisions of the Central Sales Tax Act, 1956 (for short, the CST Act), we find that the Assessing Officer had issued the notices respectively dated 06.8.2012 and 28.7.2014 proposing to levy penalty on the ground that the dealer purchased SAP software at concessional rate of tax against C Form Declarations without having included the same in the registration certificate issued under the CST Act. Hence, the Assessing Officer was of the prima facie view that the software was not capable of being used in manufacturing and therefore, had proposed to levy penalty under Section 10A(1) of the CST Act. It is worthwhile to point out that the order levying penalty for the assessment year 2008-09 is dated 30.1.2014. Though the dealer's objections were received on 16.10.2012, the Assessing Officer did not afford any opportunity of personal hearing to the appellant though more than one year had lapsed. This, in our considered view, is a serious issue because the dealer has taken a specific stand that the software is being used in the manufacture. Furthermore, the dealer's case is that in their registration certificate issued under the CST Act, as mentioned in Clause 9 in the annexure, computer software is also one of the items mentioned in their certificate of registration. Had an opportunity of hearing been granted to the dealer, especially when the Assessing Officer took more than one year to complete the assessment, the dealer would have explained the same. The case of hand having fallen under one of the exceptional circumstances as mentioned above warranting exercise of jurisdiction under Article 226 of The Constitution of India and as the defect, which has occurred by levying penalty without affording an opportunity of personal hearing would go to the root of the very levy itself, we are inclined to interfere with the impugned order, the assessment orders and remand the matters to the Assessing Officer for a fresh consideration - Appeal allowed.
Issues:
Challenge against order dismissing writ petitions under Article 226 of The Constitution of India based on lack of jurisdiction. Examination of exceptional circumstances for exercising jurisdiction under Article 226. Violation of principles of natural justice in the assessment process under the Central Sales Tax Act, 1956. Analysis: 1. Jurisdiction under Article 226: The appeal challenged the dismissal of writ petitions under Article 226 of The Constitution of India based on a previous Supreme Court decision. The High Court disagreed with the absolute bar on entertaining writ petitions and emphasized specific circumstances in which the Court can exercise jurisdiction under Article 226. 2. Violation of Principles of Natural Justice: The Court examined the assessment orders under the Central Sales Tax Act for the appellant. It was noted that the Assessing Officer levied penalties without granting a personal hearing to the dealer, violating principles of natural justice. The Court highlighted the importance of affording an opportunity for explanation, especially when significant delays occurred in the assessment process. 3. Remand for Fresh Consideration: Considering the lack of personal hearing and other procedural irregularities, the Court concluded that the case fell under exceptional circumstances warranting the exercise of jurisdiction under Article 226. As a result, the Court set aside the impugned order, assessment orders, and garnishee orders, remanding the matters to the Assessing Officer for a fresh consideration. 4. Decision and Order: The Court allowed the writ appeal, setting aside the impugned order and directing a fresh consideration by the Assessing Officer. The orders levying penalties and consequential garnishee orders were also set aside. The Court emphasized the importance of adhering to principles of natural justice in the assessment process and ensuring a fair opportunity for the appellant to present their case. Overall, the judgment focused on the correct interpretation of jurisdiction under Article 226, the significance of natural justice in administrative actions, and the necessity for a fair assessment process under the Central Sales Tax Act. The Court's decision to remand the matters for a fresh consideration underscored the importance of procedural fairness and adherence to legal principles in administrative proceedings.
|
