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TMI Blog2005 (5) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Supreme Court in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1978] 42 STC 386 and [1980] 45 STC 212. 2.. By this decision, the Supreme Court held that meals to visitors in the restaurant and also to the residents of the hotel are not taxable under the provisions of the Delhi Sales Tax Act. The respondents after considering this decision of the Supreme Court, passed assessment order dated March 28, 1981. It was held by the assessing authority that the petitioner was entitled to refund of Rs. 4,34,123.24 being the excess amount paid by the petitioner in the said assessment year. Being entitled to receive refund of the tax, petitioner filed an application for refund on April 3, 1981. However, the refund of the amount was deliberately and illegally withheld by the officials of the respondent and the amount was not paid despite various requests made by the petitioner. The petitioner thus was compelled to file a writ petition in the High Court being CW 3742 of 1982. On January 14, 1983, the court passed the following order in that writ petition: "From the contentions raised before us and the explanation offered by the learned counsel for the respondent, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition. Counter-affidavit on behalf of the respondents was filed wherein it was stated that in view of the 46th Amendment Act, 1982 of the Constitution of India, the writ petition was not maintainable as the provisions had become effective from February 2, 1983 and section 6(2) of the amending Act necessitated a suo motu review of the order of assessment for the year 1976-77. Otherwise, the facts were not in dispute. It was also stated that alternative remedy of appeal under the Sales Tax Act was available to the petitioner. The issuance of the show cause notice was, therefore, proper and the orders passed by the respondents do not call for any interference by the court. They prayed for dismissal of the writ petition. Vide order dated March 28, 1981, the assessing officer after examining the records and hearing the counsel for parties, formed an opinion that the case of the petitioner was squarely covered by the judgment of the Supreme Court in Northern India Caterers (India) Ltd. [1978] 42 STC 386; [1980] 45 STC 212 and they were not liable to pay tax on receipts on account of food/beverages served by the hotel/restaurants within the premises of the hotel/restaurant to its reside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violation of the rule of natural justice. Accordingly, the High Court directed the appellant-Board to declare the results of the students who had filed the petitions in the High Court. 2.. We have perused the records and heard counsel on both sides. On the peculiar facts and in the special circumstances of these cases, we are of the view that the High Court was justified in coming to the conclusion, which it did, that the notices served on the students were so vague and imprecise that they could not effectively defend themselves in the inquiry." 4.. Reliance was also placed upon the judgment of the Gujarat High Court in the case of Union of India v. Narayanbhai Keshavlal Patel AIR 1985 Guj 31, where the court held as under: "On the other hand, it may be a case where patently there is an error in the approach and the subscriber may be able to convince the authority of it, given a chance. We read rule 421 as needing such an approach and calling for such a construction. If that be so, in as much as whatever has been found against the subscriber was never put to him before the telephone was disconnected, we find no reason to interfere with the interim order made by this Court. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the order of his intention to do so and allow such person reasonable opportunity of being heard. In the present case, both these essential features of the proviso have apparently been violated. As already mentioned, the show cause notice issued by the authorities did not specify any grounds and it called upon the assessee to appear before the court on the second day of the date when the notice was issued. This certainly offends the principles of natural justice. The authorities are expected to exercise such powers upon due consideration and application of mind. Recourse to such powers in a mechanical manner or on the ground of mere change of opinion, would destroy the very essence of vesting such power in the authorities concerned. The Supreme Court in the case of Income-tax Officer, V Circle, Madras v. S.K. Habibullah [1962] 44 ITR 809 while discussing the scope of power vested in the Income-tax Officer under section 35(1) of the Income-tax Act held as under: "As observed by the Judicial Committee of the Privy Council in Commissioner of Income-tax v. Khemchand Ramdas [1938] 6 ITR 414: '......when once a final assessment is arrived at, it cannot, in their Lordships' opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssments of the first respondent." 8.. The assessing officer then has passed an order making addition of Rs. 8,39,741.06 and issued demand notice on the basis of show cause notice afore referred and despite the objections of the assessee which were obviously well founded in law. In the order for the first time, reference was made to the 46th Amendment to the Constitution on the basis of which the sales made by the petitioner within the premises of hotels and restaurants to residents or nonresidents, were treated to be taxable. The case of the petitioner, therefore, was that after passing the order of assessment and the orders of the High Court in CW 3742 of 1982, the right of the parties had fully been settled and even if the contention of the department was to be considered, in light of 46th Amendment, it would no way adversely affect the case of the petitioner. No doubt by section 4 of the amending Act in article 366 of the Constitution, clause (29A) was added after clause (29) and section 6 of the said Act was a saving provision with regard to revalidation and exemption. The settled rights in favour of the assessee would hardly be affected particularly in the facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the original assessment order should be paid by the date mentioned by us. In view of the nature of the contentions raised before us, we make it clear that the observation contained in this judgment regarding a possible review will have no bearing at all on the question whether there can be a review or, there are facts existing justifying a review either, because of the facts stated in the assessment order or, because of the 46th Amendment of the Constitution, or for any other reason. The parties will bear their own costs." 9.. It is not in dispute before us that the order of the division Bench of this Court was never challenged by the department and the same had attained finality. Once an order becomes final between the parties and their rights are permitted to be settled in furtherance thereto, it cannot be said that now in the present proceedings, this Court could disburse the said decision on a plea of review which itself is founded on a vague show cause and where, even the grounds on which review was sought, were not stated or put to the assessee. The respondents had given an undertaking before the court that they would refund the amount. Of course, such a direction wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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