9911796707
TMI Blog2011 (4) TMI 1270X X X X Extracts X X X X X X X X Extracts X X X X ..... order and the subsequent recovery proceeding, since they neither satisfy the statutory requirement of the AGST Act and the Rules nor the principles of natural justice. In favour of assessee. - Writ Petition (C) No. 8047 of 2004 - - - Dated:- 5-4-2011 - HRISHIKESH ROY J. A. Todi and Ms. D. Borgohain for the petitioner R. Dubey, Standing Counsel, for the respondents JUDGMENT Heard Mr. A. Todi, learned counsel appearing for the petitioner. Mr. R. Dubey, the appointed counsel of the Finance Department represents the respondents. The petitioner-company is dealing in Indian Made Foreign Liquor (IMFL) and beer and for its business, it is registered under the Assam General Sales Tax Act, 1993 (hereinafter referred to as, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evious years or the tax anticipated to be payable, for the next year. Referring to the nature of the IMFL business, the learned counsel points out that the liquor business is carried out under strict control and supervision of the Excise Department of the Government where there is little scope for tax evasion and in the absence of any allegation of misuse of statutory forms or delay in payment of tax, additional security cannot be realized from a law abiding assessee. The learned counsel for the Finance Department Mr. R. Dubey on the other hand contends that the impugned action was preceded by a show-cause notice dated November 13, 2003, and therefore complaint cannot now be made that the assessee was not given an opportunity, before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l security. Even in the assessment order, reasons are conspicuous by their absence. In the present case, the reply given by the assessee that it is regularly paying its dues and no tax remains unpaid, was not at all considered by the assessing officer, although additional security can be realized only for the purpose of ensuring timely payment of tax or for safe custody of the declaration or forms furnished by the assessee. But conspicuously, neither in the show-cause notice nor in the assessment order, any default of the assessee was indicated, to justify demand of additional security. In this circumstances, it has to be declared that the impugned demand of additional security is unlawful, as the pre-conditions under section 15(1)(a) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods dealt in by him and such other factors as may in the opinion of the said officer assist him in making a proper determination:- Provided that the assessing officer shall have power to demand at any time additional security if he has reason to believe that the security fixed was too low, or for any other reasons to be recorded in writing. When the petitioner was initially registered as a dealer under the AGST Act, the security was already recovered and considering the word may in sub-section (1) of section 15 of the AGST Act, only a discretionary power to demand additional security is given to the assessing officer. This discretionary power cannot be whimsically exercised and the discretion so vested, must be exercised reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
