9911796707
TMI Blog2012 (12) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... er the said Rule is made, notwithstanding the fact that the said Rule does not contain any express provision for the affected party being given an opportunity of being heard. If the requirement of an opportunity to show cause is not read into the said Rule, an action thereunder would be open to challenge as violative of Article 14 of the Constitution of India on the ground that the power conferred on the competent authority under the provision is arbitrary. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial as decided in Sahara India (Firm) v. CIT [2008 (4) TMI 4 - SUPREME COURT] - matter remitted to the first respondent for fresh disposal on merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders can be passed. Therefore, the entire proceedings are bad on account of violation of the above provision and also against the principle of natural justice. 3. Heard the learned counsel for the petitioner and the learned Additional Government Pleader for the respondents. 4. Mr.A.R. Jayapratap, learned Additional Government Pleader for the respondents, on instructions, states that insofar as the penalty portion is concerned, the matter may be remitted to the authority for considering the plea of the petitioner. 5. The Court is not inclined to accept the submission made by the learned counsel for revenue, as the proceedings for revision of assessment and for penalty cannot be truncated in the manner as stated by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that case, the question for adjudication was whether in the absence of a provision in the Income Tax Act, 1961, an opportunity of hearing was required to be given to an assessee before an order under Section 142(2-A) of the said Act, directing special audit of his accounts was passed? 29. A Bench of three Judges, speaking through one of us (D.K. Jain, J.), explaining the concept of natural justice and the principles governing its application, summed up the legal position as under: 19. Thus, it is trite that unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principles of natural justice demand that a show-cause notice should be issued and an opportunity of hearing should be afforded to the person concerned before an order under the said Rule is made, notwithstanding the fact that the said Rule does not contain any express provision for the affected party being given an opportunity of being heard. 31. Undoubtedly, action under the said Rule is a quasi-judicial function which involves due application of mind to the facts as well as to the requirements of law. Therefore, it is plain that before raising any demand and initiating any step to recover from the executant of the bond any amount by way of penalty, there has to be an adjudication as regards the breach of condition(s) of the bond or t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
