9911796707
TMI Blog1995 (8) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... for carrying on the business of ready-made garments, hosiery wears and school uniform of the students. At the time of opening the shop the petitioner purchased some goods locally valued at Rs. 6,913.66 and thereafter during the period from May 15, 1995 to May 20, 1995, the petitioner purchased the goods worth Rs. 3.5 lacs from Calcutta and transported the same to Ranchi and the goods so transported from Calcutta reached Ranchi on May 23, 1995. Petitioner brought the said goods to his shop in the morning of May 24, 1995 and that during arranging those goods/garments purchased from Calcutta, around 11.45 a.m. on May 24, 1995, the officers of the Commercial Tax Department as well as the Investigation Bureau came to inspect the petitioner's shop and asked the petitioner to produce the documents of the purchased goods. As the relevant documents of purchase of the goods had been lying in his residence, the petitioner requested the officer to depute a person with him to bring the documents from his residence for the production thereof. But his request was turned down and the officers of the Commercial Tax Department as well as the Investigation Bureau seized the goods purchased from Calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by respondent No. 3 on his application for release of the goods seized by the concerned authority. 6.. The respondents have filed counter-affidavit. In the counter-affidavit, the respondents have contended that the petition is premature inasmuch as the petitioner has adequate alternative remedy against the impugned order by way of preferring appeal before the higher authority under the provisions of the Act. The respondents have contended that on May 24, 1995, during the course of inspection, the petitioner could not account for the huge stock of goods in his shop except of the goods worth Rs. 6,913.66. The petitioner not having accounted for the goods valued at Rs. 6,12,558, it was normally presumed that the goods valued at Rs. 6,12,558, was kept unaccounted for evasion of tax and consequently in exercise of power under section 33(5)(a) of the Act, the goods were seized. The respondents have further contended that before imposing penalty, the petitioner was given opportunity to show cause under the provisions of the Act and the Rules and the impugned order imposing penalty was passed in accordance with law and does not suffer from any infirmity. 7.. We have heard learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the provisions of the Rules, by the impugned order dated May 29, 1995, is arbitrary and illegal. 10.. Learned Government Advocate, on the other hand, submitted that the decision in the case of East India Transport Agency [1995] 97 STC 222 (Pat) has no application on the facts of the present case inasmuch as in that case, penalty was imposed by invoking sub-sections (2b) and (3) of section 31 of the Act and the petitioner in that case was entitled to reasonable opportunity of hearing, as contemplated under sub-rule (1) of rule 19 of the Rules. But in the instant case, proceeding being under clause (b) of sub-section (5) of section 33 of the Act, petitioner was entitled to reasonable opportunity of hearing under sub-rule (2) of rule 19 of the Rules, which provides that the person proceeded against may be required to rebut the accusation and to have his say forthwith. 11.. To appreciate the rival contentions, it is appropriate to have a look into the relevant provisions of the Act and the Rules-which are set out below: "Section 33(5)(a)-An authority referred to in sub-section (1) shall have the powers to enter into and search any office, shop, godown or any other place o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of hearing. (2) An authority appointed under section 9 but not below the rank of the Commercial Taxes Officer shall, in the matter of a proceeding under clause (b) of sub-section (5) of section 33 or section 35, shall serve or cause to be served upon the person proceeded against a notice containing the same particulars as notice under sub-rule (1) subject, however, to the condition that the person proceeded against may be required to rebut the accusation and to have his say forthwith." 12.. Although sub-rule (2) of rule 19 provides that in the matter of a proceeding under clause (b) of sub-section (5) of section 33, the person proceeded against may be required to rebut the accusation and to have his say forthwith, the term "forthwith" cannot be taken literally. The opportunity of hearing is not an empty formality and/or a mere ritual, but must be meaningful and reasonable and fair and that reasonable time must be given to a party to show cause and to meet the allegation. What should be the reasonable time, depends on the facts and circumstance of a particular case. It may according to circumstances-days, week or weeks. In this connection, it is appropriate to refer to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
