9911796707
TMI Blog2012 (12) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... Quash the impugned notice dated April 22, 2011 of respondent No. 2 issued under section 46(1) of the H. P. Value Added Tax Act, 2005 (annexure P6). (ii) Issue writ of mandamus directing respondent No. 5 to comply with appellate order dated July 27, 2011 (annexure P5) passed by respondent No. 3 in appeals. The petitioner is a registered dealer under the provisions of the H. P. Value Added Tax Act, 2005 (in short called "the Act" hereinafter) and Central Sales Tax Act, 1956. The petitioner has set up its unit and is registered as small-scale industrial unit with District Industry Centre and is dealing in tyre retreading work. The assessment order for the year 2004-05 was passed by the assessing authority on June 30, 2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the permission of this court. The Excise and Taxation Commissioner, however, after considering the order dated July 27, 2010 (passed by the Additional Commissioner) and also considering the notice in question, has disposed of Revision No. 50/2010-11 vide order dated November 19, 2011 which has, however, not been challenged by way of revision before this court. Mr. Rakesh Sharma, learned counsel for the petitioner, has argued that the Commissioner (Excise and Taxation) cannot exercise its revisional power under section 46 of the Act, for testing the validity and legality of the order dated July 27, 2010 passed by the Additional Commissioner (Excise and Taxation) in his capacity of an appellate authority. It has also been argued that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. R. K. Sharma that the authority subordinate to the Commissioner includes authorities exercising the powers of assessment as well as the appellate powers. For reference the relevant sections of the H. P. Value Added Tax Act, 2005 are reproduced as below: 45. Appeal:- (1) An appeal from every original order passed under this Act or Rules made thereunder shall lie: (a) if the order is made by an assessing authority or by an officer-in-charge of the check-post or barrier or any other officer not below the rank of the Excise and Taxation Officer, to the Deputy Excise and Taxation Commissioner; (b) if the order is made by the Deputy E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be entertained by an appellate authority unless such appeal is accompanied by satisfactory proof of the payment of the tax (including interest payable) or of the penalty, if any, imposed or both as the case may be: Provided that if such authority is satisfied that the dealer is unable to pay the tax (including interest payable) assessed or the penalty, if any, imposed or both, he may, for reasons to be recorded in writing, entertain an appeal without the tax (including interest payable) or penalty or both having been paid in full or after part payment of such tax (including interest payable) or penalty or both. (6) Subject to such rules of procedure as may be prescribed, an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o order shall be passed under this section, which adversely affects any person unless such person has been given a reasonable opportunity of being heard." We have heard the learned counsel for the parties. The word "Commissioner" provided under section 46 has to be read in reference to the definition provided under section 2(f) of the Act. Firstly, the Commissioner (Excise and Taxation), on his own motion, may call for the record of the any proceedings which are pending or which have been disposed of. Secondly the Commissioner (Excise and Taxation) has only to exercise its revisional powers on his own motion in respect of the matters pending before any authority subordinate to him. In our considered view, any proceedings include assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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