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TMI Blog2008 (7) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... 4069, 4147,4148, 4149, 4150 of 2008 - - - Dated:- 29-7-2008 - VINEY MITTAL , J. JUDGMENT :- VINEY MITTAL J. This order shall dispose of 14 writ petitions being W.P. Nos. 3381 to 3384 and 4098 of 2007, W.P. Nos, 4065 to 4069 and 4147 to 4150 of 2008, as the controversy involved in all these cases are identical, and identical arguments have been addressed before me by the learned counsel for the parties. For the sake of convenience, the facts are borrowed from W.P. No. 3381 of 2007. The petitioner, Milan Supari Stores, is a partnership firm engaged in the purchase and sale of supari, elaichi, khopra, etc. The controversy in question relates to the reassessment orders passed by the sales tax authorities pertaining to the period April 14, 1982 to March 31, 1983. The order dated January 13, 2006 passed by way of reassessment by the assessing authority (Assistant Commissioner of Commercial Tax) has been confirmed by the revisional authority vide order dated January 31, 2007. For the assessment year in question, the assessing authority completed the assessment proceedings of sales tax vide order dated July 22, 1985. The tax, as assessed by the assessing authority, was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee-firm felt aggrieved against the order, annexure P1, and preferred a revision petition. The reassessment order was challenged on various grounds. One of the primary grounds of challenge was that the reassessment order was barred by limitation. The aforesaid objection of limitation was accepted by the revisional authority and vide order dated November 10, 1988, the revision petition filed by the assessee/firm was allowed. Reassessment proceedings were held to be barred by limitation. The Commissioner of Commercial Tax challenged the revisional order by filing an appeal under section 39(5) of the Act before the Board of Revenue. The aforesaid appeal filed by the Commissioner was allowed by the Board of Revenue vide order dated October 29, 2002 and the revisional order dated November 10, 1998, passed by the Additional Commissioners, was set aside. It is also on record that a writ petition was filed by the assesseefirm against the aforesaid order passed by the Board of Revenue, but the same was dismissed by a learned single judge vide order dated December 19, 2002, being W.P. No. 1907 of 2002 (Milan Supari Stores v. Board of Revenue). It is also common case between the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nity of cross-examination that the matter had been remanded back. Consequently, the petitioner-firm prayed that before proceeding any further in the reassessment proceedings, the requisite material be supplied by the assessing authority and opportunity to cross-examine the witnesses, as aforesaid, be also granted. Strangely, the aforesaid request for cross-examination was again turned down by the assessing authority, by maintaining that no such opportunity was needed. According to the assessee-firm, some documents, though not complete material, were supplied by the assessing authority. The assessee-firm filed a revision petition before the revisional authority by challenging the reassessment order dated January 13, 2006 (annexure P11). Identical grounds were again reiterated, besides challenging the reassessment order on the merits of the controversy. During the course of revisional proceedings, the revisional authority thought it appropriate to supply all the material, which was demanded by the assessee-firm. The request made by the assessee-firm for cross-examination of the witnesses was also accepted and consequently, summons were issued to 15 witnesses to appear before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 87. However, the aforesaid reply filed in W.P. No. 4098 of 2007 has been specifically adopted by the learned Government counsel in all the writ petitions. In the reply, it has been maintained by the Department that due procedure, as per law, had been followed by the assessing authority as well as the revisional authority and there was sufficient compliance of section 55 of the Act, when summons to the said witnesses had been issued, but even after due service of the said summons, if the said witnesses had chosen not to appear, then it was in those circumstances that their statements recorded by the Department had been used against the assessee-firm. I have heard Shri P.M. Choudhary, learned counsel for the petitioner and Shri Umesh Gajankush, learned Government counsel for the respondents and with their assistance have also gone through the record of the case. Shri P.M. Choudhary, learned counsel for the petitioner, during the course of arguments, has reiterated all the pleas raised by the assessee-firm in the writ petition. It has been vehemently maintained by the learned counsel that once it had been conceded as a matter of principle by the revisional authority that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law. Shri Gajankush also maintains that the revisional authority had not only issued summons to the witnesses, but as requested by the assessee-firm, had even provided additional summons to the assesseefirm to serve the said witnesses. However, when the said witnesses had not appeared, despite service upon them, then the departmental authorities were left with no other alternative except to proceed further in the matter. Shri Gajankush also maintains that as a matter of fact, once the assessee-firm had taken upon itself to serve the said witnesses, then no defence of non-appearance of the said witnesses could be taken by the assessee-firm. I have duly considered the rival contentions of the learned counsel for the parties and have also gone through the impugned orders. In my considered view, the writ petition deserves to be allowed. It is not in dispute that the witnesses, whose statements were recorded by the Department during the investigation, were not produced by the Department for cross-examination by the assessee-firm. Although, the Department maintains that the summons on the said witnesses had been served, but in spite of the service upon them, the said witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of course, the departmental authorities would be well within their rights to proceed with the reassessment proceedings and pass a reassessment order, on the basis of the aforesaid material, but the aforesaid right of the assessing authority would not confer any jurisdiction upon him to use the statements of the witnesses and the material collected during investigation from such witnesses, who have not appeared for cross-examination by the assessee-firm, in any manner. At this stage, it may be noticed that an attempt was made by the revisional authority to offer an opportunity of cross-examination to the assessee-firm by issuing summons to the witnesses and by supplying the material documents to the assessee-firm. In these circumstances, I deem it appropriate that rather than remitting the matter to the assessing authority, it would be just and proper, if the matter is remanded to the revisional authority, so that revision petition filed by the assessee-firm can be re-adjudicated, in the light of the observations made by this court. Consequently, the order annexure P18 dated January 31, 2007 is set aside. The revision petition filed by the assessee-firm is restored to its ori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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