9911796707
TMI Blog1994 (4) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... lam, who is the assessing authority in this case, determined the taxable turnover of the petitioner-firm for the year 1985-86 at Rs. 22,72,140.50 as against the turnover of Rs. 20,11,470.50 returned by the firm. Being aggrieved by this assessment, the petitioner-firm filed an appeal before the Additional Deputy Commissioner (Appeals), Ernakulam (hereinafter described as "the Deputy Commissioner"), under section 34 of the Act. That appeal happened to be decided ex parte. As against the said ex parte order dated July 15, 1991, a further appeal was filed by the petitioner-firm before the Tribunal as T.A. No. 141 of 1992. Notwithstanding the contentions urged by the petitionerfirm the Tribunal dismissed the appeal upholding the order of the Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable. Whether in a given situation, the opportunity of being heard made available to the appellant is "reasonable" or not is largely depended on the facts of each case. In this case there is no dispute on the fact that the order of the Deputy Commissioner dated July 15, 1991, was passed without hearing the petitioner-firm, the appellant therein. In the appeal, S.T.A. No. 196 of 1989, before the Deputy Commissioner the petitioner-firm was represented by a chartered accountant, Sri N. Vittal Rao. According to the Deputy Commissioner, the appeal was posted for hearing on different dates, namely, June 13, 1989, July 12, 1989, October 18, 1989 and November 15, 1989. The appeal was finally posted for hearing on July 11, 1991 and it was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1961/89. 3.. The above case was first posted for hearing on June 13, 1989. I had gone to Ernakulam and had appeared before the Deputy Commissioner and represented the case. But the Deputy Commissioner was transferred before the order could be written. 4.. Subsequently, the case was re-posted for hearing by the incumbent Deputy Commissioner on July 12, 1989. Against this notice, I had applied for an adjournment as I had to appear other time barring assessment. 5. The case was again re-posted on October 18, 1989. I had appeared before the Deputy Commissioner but the Deputy Commissioner did not take up the appeal. The same was re-posted on November 15, 1989. 6.. The posting notice posting the case on November 15, 1989, was receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er posted for hearing on October 18, 1989, on which day the petitioner's representative appeared but the Deputy Commissioner did not take up the appeal for hearing on that day. It was re-posted to November 15, 1989. According to the petitioner's representative, he had received the notice of the above re-posting only on November 15, 1989 and therefore he had applied for adjournment. Now, let us examine the position as to the final date of hearing on July 11, 1991. It may be noticed that the appeal was posted for hearing only after 18 months. The petitioner's representative stated in the affidavit that he was away at Jodhpur on a domestic engagement during that time and his office had applied for adjournment stating his inability to be presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uable right made available to an appellant-registered dealer under the Act. Even though this right personifies the principle of natural justice it can accurately be described as a statutory right in the present case. Such a right cannot be allowed to be defeated by procedural wrangles or whims and fancies of the authorities concerned. "A reasonable opportunity of being heard" contemplated in the section shall be effective and adequate and it cannot be made illusory under any circumstance. Mere issue of a notice of hearing of the appeal will not suffice at all circumstances. In the facts set out hereinbefore, we are fully convinced that the petitioner-firm did not get reasonable or effective opportunity of being heard in the appeal S.T.A. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, not even a reference is made about this affidavit by the Tribunal in the impugned order. The circumstances stated by the authorised representative of the petitionerfirm in annexure A affidavit as regards the posting of the appeal on July 11, 1991 and seeking of adjournment thereof have not been considered by the Tribunal while upholding the rejection of the application for adjournment of hearing on July 11, 1991, by the Deputy Commissioner. We have therefore no hesitation to hold that the petitioner-firm did not get an opportunity of being heard in the matter as contemplated in sub-section (3) of section 34 of the Act. 9.. In view of what is stated above, we are of the view that the impugned order of the Tribunal upholding the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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