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TMI Blog2013 (5) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor. The last writ petition (W.P. (C).No.12299/2012) is filed by the petitioner in respect of proprietorship concern, who happens to be the Managing Director of the two Companies as mentioned above, while the sole remaining Director is his wife who is also having a proprietorship concern by name 'South Asian Trade Links'. Held that - From the above, it is seen that, but for the vague averment and lame excuse, no effective steps were taken by the petitioner Company to have responded to the notice issued for finalization of proceedings, which was pending for quite long. As mentioned already, the petitioner is not a 'layman' or an individual, but a Company incorporated under the relevant provisions of the Indian Companies Act, 1956, who could have ensured proper representation before the concerned authority through the Company Secretary, the Chartered Accountant, Lawyer if any, or such other authorised representative. Hence interference is not called for in this writ petition. In the result, Writ Petitions 12352/2005, 10403/2012 and 10938/2012, filed by the concerned Companies are found as devoid of any merit and they are dismissed accordingly. This however shall be without preju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cern by name 'South Asian Trade Links'. 2. The four different establishments as above are having separate registrations under the KGST Act and are engaged in similar nature of business dealing with rice, wheat, dal etc., sharing the same roof. While so, there was a search in the premises of the petitioners, by the authorities of Sales Tax Department, on 2.2.2001, when some incriminating materials were traced out. Pursuant to this, notices were given to produce the 'books of accounts' and despite the several adjournments and various communications in between, the opportunity given was not properly utilized by the petitioners, leading to separate orders of assessment and penalty under Section 45A; which forms the subject matter of challenge in the concerned writ petitions. 3. Pursuant to the search and seizure effected on 2.2.2001 as mentioned above, notice dated 7.3.2003 was issued proposing to impose penalty under Section 45A in respect of the assessment year 1999-2000 and 2000-2001. It was followed by another notice dated 15.10.2001 and revised notice dated 30.11.2001. Apart from granting time to file detailed objection, the petitioner was given opportunity of personal hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials on record, this Court finds that all the relevant facts and figures have been discussed in detail by the second respondent while passing Ext.P7 order and so also by the first respondent in Ext.P10 order. The factual position has been analysed with proper application of mind in the light of the available materials on record, which does not suffer from any infirmity, either legal or factual. This being the position, no further fact adjudication is warranted, nor is sustainable at the hands of this Court under Article 226 of the Constitution of India; more so, when there is no violation of 'principles of natural justice'. 8. The petitioner Company is stated as aggrieved of Ext.P9 and P10 orders, the former in respect of the punishment imposed under Seciton 45A for the assessment year 2000-2001, while the latter, in respect of the assessment for the same year. The proceedings which led to Ext.P9 order are based on Ext.P1 and P2 orders passed by the Deputy Commissioner, Commercial Taxes and Commissioner, Commercial Taxes respectively in the first and second rounds of revision, against the imposition of penalty by the concerned authority. Ext.P1 and P2 orders were in fact challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned is confirmed as follows." 11. With regard to the assessment finalized in respect of the year 2000-2001 as per Ext.P10, it is seen that the notice sent by the departmental authorities was returned 'unclaimed' and hence notice was served by affixture. The relevant portion of Ext.P10 reads as follows: "The notice containing the above proposal dated 31.01.2011 inviting objection if any was issued to the assessee by registered post in the last known business place of the assessee Company as well as to the permanent address of the Directors of the Company. All the notices were returned by the postal authorities with the endorsement 'unclaimed'. Hence the notice was served by affixture. Remarks seen in the cover such as 'Deposit 10 days' intimation given and finally 'unclaimed' evidencing deliberate attempt from the part of the assessee to evade from accepting the Statutory notice issued from this office and thereby from the assessment proceedings. The notices are treated as served upon the assessee under Section 55B (b)(c) read with Rule 63(b) (c)(d) of the KGST Act Rules. In the circumstances the proposal contained in the pre assessment notice are examined with reference t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as per Ext.P5 and P6 orders. The observation in Ext.P5 in this regard is as follows: "The notice under Section 17(3) of the Act containing the above proposal was sent by registered post to the Company address as well as directors residential address. The postal authorities returned the covers containing the proposal noting the 'unclaimed' also with endorsement " " Therefore the notice is treated as served. In the above state of affairs it is evidently clear that the dealer have no book of accounts of his business transaction to produce before the assessing authority. Hence they are deliberately evade from the procedure of completing the assessment for 1999-2000. In the circumstances, I have no other go but to proceed with the assessment and hence the final assessment of the dealer for 1999-2000 under KGST Act 1963 is completed as under." Similar observation in Ext.P6 order in respect of the assessment year 2000-2001 reads as follows: "The notice U/S 17(3) of the KGST Act 1963 dt. 1.2.2011 containing the above proposal inviting objection if any, was sent to the dealer as well as to the residential address of the directors. 1. Sri. M.A.K. Azad (Managing Director) 2. Smt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in the premises of the other three sister concerns on 2.2.2001. Pursuant to the incriminating circumstances traced out, penalty proceedings were initiated under Section 45A against the two Companies and also against the two proprietorship concerns, one of which belongs to the petitioner and other one to his wife. The penalty proceedings in respect of two proprietorship concerns were compounded and those in respect of the Companies were contested. The issue involved is only with regard to the assessment for the year 2001- 2002; 17. In respect of the year 2001-2002, the petitioner had filed annual return showing a total turnover of Rs.76,95,040/- and taxable turnover of Rs.69,86,501.50/-. While so, Ext.P1 notice dated 25.11.2010 was issued by the first respondent under Section 17(3) of the KGST Act, as to the assessment proposed. It was followed by Ext.P2 revised notice dated 31.12.2010. The petitioner was also served with Ext.P3 notice dated 6.1.2011 as to the personal hearing scheduled on 21.1.2011. On receipt of Ext.P1 and P2 notices, the petitioner submitted Ext.P5 reply dated 17.1.2011 explaining the facts and figures, also seeking for 30 days time to produce the books of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tum of filing of Ext.P5 reply by the petitioner on 17.1.2011, however stands admitted, as conceded in paragraph '6' of the statement, which reads as follows: "On the basis of the reply filed, again a notice dtd. 24.01.2011 issued affording personal hearing on 10.02.2011. But the dealer refused to receive the cover containing the above notice. Hence the postal authorities returned the cover by noting in Malayalam. "The cover is returned since the addressee is not received it though intimation issued." True copy of the cover is produced herewith and marked as Annexure R1(e)." It is further stated in paragraph '10' that the assessing authority had to complete the final assessment, in the above circumstances and that the assessment orders and demand notice were sent by registered post, which were also caused to be returned by the postal authorities with the endorsement as: "intimation issued returned". 20. Ongoing through the materials on record, it is seen that much reliance is sought to be placed on Annexure R1(e), copy of the postal cover, which was returned allegedly for having refused to be accepted, despite serving the intimation. It is in respect of the 'personal heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and this Court finds that an opportunity has necessarily to be given to the petitioner to produce the books of accounts in respect of the 'proprietorship concern' of the petitioner, before the proceedings are finalized. As such, Ext.P8 assessment order and Exts.P7/P7(a) R.R. Notices have necessarily to go. 22. In the result, Writ Petitions 12352/2005, 10403/2012 and 10938/2012, filed by the concerned Companies are found as devoid of any merit and they are dismissed accordingly. This however shall be without prejudice to the rights and liberties of the said petitioners to avail the statutory remedy in accordance with law. 23. In W.P(C).No.12299/2012 filed by the petitioner/individual assessee in respect of the proprietorship concern, Ext.P8 assessment order and Exts.P7/P7(a) R.R. notices are set aside. The first respondent is directed to pass fresh orders after giving an opportunity to produce the books of accounts and for hearing, in accordance with law, as expeditiously as possible, at any rate within 'three months' from the date of receipt of a copy of this judgment. The petitioner is directed to appear before the first respondent with all the books of accounts and suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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