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TMI Blog2015 (3) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... Taxation Commissioner, Punjab granting permission to amend assessment order for for the assessment year 2009-10 and consequential notices dated 5.2.2014 and 17.6.2014, Annexures P.3 and P.11 respectively issued by respondent No.3 - Assistant Excise and Taxation Commissioner. 3. A few facts relevant for the decision of the controversy involved as narrated in CWP No.12839 of 2014 may be noticed. The petitioner firm besides manufacturing is engaged in trading of iron and steel on whole-sale basis for past many years. It is registered as taxable person under the PVAT Act and also under the Central Sales Tax Act, 1956. During the year 2009-10, the petitioner firm made sales in the State of Punjab amounting to Rs. 31,60,41,432/-. It filed all statutory returns and furnished details of purchases and sales with the returns. It had brought forward Investment Tax Credit (ITC) amounting to Rs. 15,306/-. It made purchases amounting to Rs. 31,52,44,606/- against VAT invoices and earned ITC amounting to Rs. 1,26,19,475/- in respect of the afore-stated purchases. The assessee also deposited VAT amounting to Rs. 50,930/-. The petitioner firm had availability of ITC amounting to Rs. 1,26,85,711/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made under sub section 2 or 3 of Section 29 of the PVAT Act if he discovers under assessment of tax payable by a person for the reason that such person has committed fraud or willful neglect or has misrepresented facts or a part of the turnover has escaped assessment. According to the learned counsel, the same can be done with the prior permission of the Commissioner. However, the provision is unreasonable, unconstitutional and ultravires for the reason that no opportunity of hearing has been provided before granting permission by the Commissioner. As a consequence, the order dated 29.1.2014, Annexure P.2 passed by the Excise and Taxation Commissioner granting permission to amend the assessment order for the year 2009-10 and consequently notices dated 5.2.2014 and 17.6.2014, Annexure P.3 and P.11 respectively issued by the Assistant Excise and Taxation Commissioner are also bad. In support of the submissions, learned counsel for the petitioner referred to judgments in Sahara India (Firm) vs. CIT, Central I, (2008) 226 ELT 22 (SC), Rajesh Kumar and others v. Dy. Commissioner of Income Tax and others, (2006) 287 ITR 91 (SC), C.B.Gautam Vs. Union of India and others, (1993) 199 ITR 53 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignated officer to the person clearly stating the grounds for the proposed amendment, the date, time and place fixed for such amended assessment. After hearing the person concerned and making such enquiry, as the designated officer may consider necessary, he may proceed to amend the orders as he deems fit subject, however, to the following conditions, namely :- a) No amendment, which has the effect of enhancing the amount of tax, shall be made by the designated officer, unless he has given notice to the person concerned of its intention to do so and has allowed him a reasonable opportunity of being heard. (b) Where such amendment has the effect of enhancing the amount of the tax or penalty, the designated officer, shall serve on the person a tax demand notice in Form VAT -56 as required under sub section (11) of section 29 and thereupon, the provisions of the Act and these rules shall apply, as if such notice had been served in the first instance. (c) Where any amendment made under sub section (7) of section 29 has the effect of reducing the tax or penalty, the designated officer shall order refund of the amount, which may be due to the person and the procedure for refund laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rant sanction. The grant of sanction, therefore, being administrative act, the need to provide an opportunity of hearing to the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by violation of the principles of natural justice.'" 11. In Subramanian Swamy vs. Manmohan Singh and another, (2012) 3 SCC 64, the Supreme Court dealing with the provisions of Prevention of Corruption Act, 1988, regarding opportunity of hearing to be provided before grant of sanction had observed as under:- "44.We may also observe that grant or refusal of sanction is not a quasi judicial function and the person for whose prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter. What is required to be seen by the Competent Authority is whether the facts placed before it which, in a given case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant. If the Competent Authority is satisfied that the material placed before it is sufficient for pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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