9911796707
TMI Blog2008 (7) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 duly paid by the assessee. However, the aforesaid assessment was sought to be reopened under section 19(1) of the M.P. General Sales Tax Act, 1958 (since repealed) (hereinafter referred to as, "the Act") along with the assessments for the years 1983-84, 1984-85 and 1985-86. On the receipt of the notice of reassessment, the petitioner-firm approached this court through a writ petition, which was disposed of vide order dated May 5, 1994 (Milan Supari Stores v. Assistant Commissioner of Sales Tax [1994] 95 STC 165). The court directed the assessing authority to determine the question of jurisdiction, at the first instance, before proceeding any further with the reassessment proceedings. In view of the directions issued by the court, an order dated March 27, 1996 was passed by the assessing authority. The question of jurisdiction was decided against the assessee. The aforesaid order was ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition 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 parties that the L.P.A. filed against the order of the learned single judge was also dismissed. Since the order of the Additional Commissioner deciding the question of limitation as a preliminary issue was set aside by the Board of Revenue, therefore the revision petition filed by the assessee-firm against the order of the assessing authority was taken up for hearing once again, on the merits of the controversy. During the course of proceedings before the revisional authority, the assessee-firm again reasserted the plea for supplying of the documentary evidence used by the Department against it and also for providing an opportunity to cross-examine the witnesses, whose statements were relied upon by the Department for reopening the assessment proceedings. In fact, one of the main grounds of challenge against the assessment order was the non-supply of the said documentary evidence to it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings, 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 the revisional authority, so that an opportunity for cross-examination could be provided to the assesseefirm. However, it appears from the record that although the aforesaid summons were duly served on the witnesses, none of the witnesses had chosen to appear. On account of non-appearance of the said witnesses, the revisional authority thought it appropriate to continue with the proceedings in the revision petition and by passing an order dated January 31, 2007, the assessment order passed by the assessing authority was affirmed. The revision petition filed by the assessee-firm was dismissed. The revisional order has been appended as annexure P18 with the present petition. It is in these circumstances, that the assessee-firm has challenged the order, annexures P11 and P18. It has been claimed in the petition that the re-assessment order, as well as the revisional order, suffer from an error appar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 request made by the petitioner-firm for supplying of the documents and for grant of an opportunity to conduct the crossexamination of the witnesses, whose statements had been recorded behind the back of the assessee-firm, was required to be accepted and even on earlier occasion, the revision petition filed by the assessee-firm was allowed and the matter had been remanded to the assessing authority with a direction to supply the aforesaid material and grant an opportunity to cross-examine the said witnesses, then non-grant of opportunity by the assessing authority and non-supplying of the entire material to the assesseefirm constituted a gross violation of the directions issued by the revisional authority, while remanding the matter and was even contrary to the principles of fair play, equity and also in violation of the principles of natural justice. Shri Choudhary has argued that in the subsequent revision pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 had chosen not to appear and therefore, the Department was within its right to proceed further with the matter, but the fact that the statements of the said witnesses were recorded during investigation, behind the back of the assessee-firm cannot be lost sight of. The assessee-firm was well within its rights to seek a right of cross-examination of the said witnesses, in case their statements were to be relied upon by the Department. Even if the said witnesses were duly served, but had chosen to remain absent, despite service, the said fact cannot be used against the assessee-firm in any manner. On the other hand, the absence of the said witnesses was to be used against the Department itself and an adverse inference was required to be drawn against the Department for non-appearance of the witnesses. In any case, the statements of the aforesaid witnesses, recorded during investigation, by any stretch of imagination, could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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