9911796707
TMI Blog1993 (11) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... rected towards availability of certain debit notes from the customers and statements, in fact, have been recorded as to availability of such debit notes at the head office of the petitioner and production of the same in due course. 3.. On November 30, 1992, the petitioner submitted some of the debit notes received from the customers. Books of accounts were also said to have been examined for the assessment year 1989-90. 4.. On March 5, 1993, the petitioner, it is said, has submitted a detailed letter indicating the nature of its contract with its customers, pointing out that the sales were inter-State from Maharashtra and other States. Debit note particulars, it appears, had also been recovered from the customers of the petitioner. 5.. On June 9, 1993, the petitioner was served with a notice by the respondent, vaguely alleging that with the materials received at the site, it assembled and fabricated them into machinery and sold the goods to local sugar mills, thereby proposing huge taxes and penalty and requiring it to file objections, if any, granting fifteen days time. 6.. On June 16, 1993, the petitioner sought for extension of time by three weeks and accordingly, time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing available adequacy of opportunity to the petitioner to file its objections to the tax liability proposed, by furnishing copies of documents prayed for by it, on which reliance had been placed for passing the impugned order. 10.. The petitioner has also filed W.M.P. No. 29730 of 1993 praying for stay of all further proceedings, pending disposal of the writ petition. 11.. When the writ petition, along with W.M.P., came up for admission, this Court directed Mr. T. Ayyasamy, learned Government Advocate (Taxes) to take notice and accordingly, he did so. 12.. Mr. C. Natarajan, learned counsel appearing for the petitioner, in reiteration and further elaboration of the stand taken in the affidavit, filed in support of the writ petition, would submit that the sequence of events that had happened prior to the passing of the impugned order would demonstrate, in an unclinching fashion, that the petitioner was led to believe that it would be provided with adequacy of opportunity for filing its objections, after furnishing the copies of documents it had prayed for, before ever the impugned order was passed; that therefore, the order impugned, which had been passed throwing to winds, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave given such a statement. This is quite obvious. Perhaps such a personnel would have been under the impression by giving such a statement that debit notes, being the customer s documents, would normally be available in the head office. This Himalayan blunder, said to have been committed by him, perhaps came to be revealed only when those documents were found to be not traceable in the head office. It transpires from the assertions made in the affidavit and supplemental affidavit, sworn to by the branch manager of the petitioner, that certain debit notes from the customers had neither been received ; nor accepted or either returned or rejected by the petitioner and that such of those debit notes objected to by the petitioner have not been communicated to it again and such debit notes could be available only with the customers. 15.. When the copy of the debit notes as sheet-anchor for the department resulting in the impugned order passed, it cannot be expected that the petitioner would have been in a position to put forth their points of view, in an effective manner, in rather a bid to avoid incidence of tax effect in a colossus way. That perhaps was the reason for the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is, such a rule has become an axiomatic proposition of law to be followed by all the courts in the land. The impugned order, as such, deserves to be set aside. 17.. Yet another point of view had been focussed for consideration from another angle. If the petitioner simply resorts to file an appeal under section 31 of the Act, it ought to suffer a serious handicap. The reason is so obvious. Before the appellate forum, it is legitimately permissible for the petitioner to urge for invocation of the appellate powers of setting aside, modifying or annulling and such other ancillary powers depending upon the exigency of the situation. In the case on hand, if the petitioner resorted to file an appeal, without resorting to the action of the present nature, there are no materials available on record, as a consequence of the denial of an opportunity to project its point of view, supported by the materials enabling it to canvass, in the exercise of power of setting aside the impugned order on merits and if at all, it can resort to address arguments for a remit order to be passed by the appellate authority on the ground of denial of an opportunity to project its points of view by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of additional evidence, in support of their case, would tantamount to snatching away of the jurisdiction that had been vested in such authority, which is not permissible, in the eye of law. 20.. Looking at from any angle, the best course to be adopted, in the facts and circumstances, is to set aside the impugned order as being void, as a consequences of violation of the rules of natural justice, in the sense of the petitioner not having been given the adequacy of opportunity to file its objections, in an effective manner, after furnishing it with copies of the documents, it had sought for and accordingly, the impugned order is set aside. It is however made clear that copies of whatever documents and statements of accounts, which are available in the custody and possession of the authorities on the basis of which the impugned order had been passed must be made available to the petitioner within a week from today (November 4, 1993), at its cost and the petitioner, in turn, would file its objections within three weeks from the date of furnishing of such copies by the authorities for enabling the authorities to pass assessment order, on consideration of objections so filed. 21.. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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