9911796707
TMI Blog2009 (10) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner has alleged that the petitioner was surprised to receive a notice in form No. S.T.C.P.I. dated September 12, 2008 under section 52(5) of the 1994 Act by which it was asked to pay certificate amount of Rs. 7,85,829.50 for satisfying the certificate. According to the petitioner, after receipt of the notice of the certificate proceeding, petitioner No.1's representative enquired and came to learn that the assessment order dated April 3, 2002 had been revised by an order dated March 28, 2008 passed by the Assistant Commissioner of Sales Tax, Chowringhee Circle (in short, the ACCT ) in a suo motu revision proceeding. After obtaining aforementioned information petitioner No. 1 applied for certified copy of the order sheet in suo motu revision case. In response to such request the petitioner was supplied a copy of the proposal for suo motu revision sent by the Sales Tax Officer, Esplanade Charge, a copy of the computation of tax made by the Sales Tax Officer on the basis of the order passed in suo motu revision and a copy of the demand notice in form No. 33. The petitioner has alleged that its office did not receive any notice of the said suo motu revision proceeding and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose allegations. We confine our determination to the basic questions whether the suo motu revision and the proceeding for cancellation of certificate of settlement were conducted in accordance with the principles of justice, fair play and other jurisdictional requirements. In the course of hearing Mr. Nath, learned State Representative, submitted a written chronology of relevant events. Some of the material dates are very significant. The petitioner's application for settlement was accepted and the dispute was finally settled on September 30, 2003 under the SOD Act. After such settlement Bureau of Investigation conducted investigation and submitted a report on March 13, 2008. In the report Bureau alleged that petitioner misclassified certain items which were taxable at 12 per cent as computer peripherals, paid tax at lower rate and thereby evaded payment of due tax on those items. On receipt of the said investigation report the assessing authority on March 17, 2008 sent a proposal to the Deputy Commissioner for initiating a suo motu revision. On the same date, i.e., March 17, 2008, the Deputy Commissioner of Commercial Taxes, Chowringhee Circle, issued a notice to the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during validity of certificate of settlement was impermissible and incompetent. Notice for suo motu revision even if otherwise valid, could not have been issued on March 18, 2008 and it was bad and unauthorised in law. In fact no step for any review, revision or any other proceeding excepting a proceeding under section 12(1) of the Act, could be taken before March 24, 2008, the date on which certificate of settlement was actually revoked. Sequentially, proceeding under section 12(1) of the SOD Act should have been completed first before any other lawful proceeding could be initiated. Language of section 12(1) is not very clear. There is doubt whether a proceeding under section 12(1) of the SOD Act can be initiated on the allegation that any material information was suppressed or an incorrect information or particular was furnished in the returns particularly when those returns were examined and an assessment order was passed by the appropriate assessing authority. However, we are not expressing any final opinion on the circumstances in which power under section 12(1) of the SOD Act can be exercised. In the present case a proceeding for revocation of the certificate of settlem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... designated authority under the SOD Act is sought to be defended on the ground that the remedy of suo motu revision was going to be barred by April 4, 2008 and suo motu revision could not be taken up before revocation of certificate of settlement. A proceeding under section 12(1) of the SOD Act is to be initiated and disposed in the manner laid down by the said SOD Act and the Rules framed for the purpose. It is immaterial if another possible proceeding gets barred for complying with the basic rules governing a decision making process. Opportunity of hearing cannot be dispensed with for any reason whatsoever. Moreover, if a proceeding under section 12(1) of the SOD Act can be initiated on the allegation of furnishing incorrect information or particulars in the returns, adjudication on the said allegation is to be made in the proceeding itself. A certificate of settlement cannot be revoked on the basis of an allegation only. Revocation of a certificate of settlement revives the appeal or revision, as the case may be. In the present case the petitioner's appeal against assessment order would have revived. The Revenue could have placed their case in the said appeal and invite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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