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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 ..... t nowhere envisages personal hearing to be provided to the dealer before granting of prior permission by the Commissioner. The grant of permission is an administrative function and cannot be termed to be quasi judicial in nature. The prior permission of the Commissioner has been incorporated to safeguard the interest of the dealer so that the designated officer, where he is of the opinion that action is required to be taken, seeks approval of the higher officer of the rank of Excise and Taxation Commissioner. The dealer is provided with an opportunity of hearing at the time when the designated officer after getting approval from the Commissioner proceeds to amend the assessment order. Under the circumstances, the provision in question cannot be termed to be unreasonable, unconstitutional and ultravires. - approval given by the Commissioner and the notices issued by the concerned authority for amending the assessment order cannot be faulted. - Decided against assessee. - CWP No.12839 of 2014 - - - Dated:- 8-7-2014 - MR. JUSTICE AJAY KUMAR MITTAL AND MR. JUSTICE JASPAL SINGH, JJ. For The Petitioner : Mr. G.R.Sethi, Advocate and Mr. Varun Chadha, Advocate ORDERE Ajay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Respondent No.3 who had neither passed the assessment order nor had ever examined the account books etc. unilaterally moved respondent No.2 for grant of permission to amend the assessment orders already passed and the said permission was granted by respondent No.2 vide order dated 29.1.2014 without affording an opportunity of hearing to the petitioner. Respondent No.3 issued consequential notice dated 5.2.2014 and 17.6.2014, Annexures P.3 and P.11. On 22.2.2014, the petitioner made an application to respondent No.3 for supply of the copy of the order passed by the respondent No.2. The petitioner made further applications on 7.3.2014 and 13.3.2014 for supply the copy of the orders. Ultimately common order passed under section 29(7) of the Act was sent to the petitioner vide memo dated 24.3.2014, Annexure P.2. The petitioner firm alongwith Jullundur Engineering Co. filed common Civil Writ Petition No.6152 of 2014 in this Court for quashing the impugned notice dated 5.2.2014. The writ petition was disposed of vide order dated 1.4.2014 relegating the petitioner to seek the remedy of appeal. On 21.4.2014, the petitioner filed separate appeal for each assessment year before the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice as no opportunity of hearing is provided to the assessee before grant of approval by the Commissioner. According to the learned counsel, this is arbitrary and unreasonable and liable to be struck down. We are not impressed with the aforesaid submission. 6. It would be apt to refer to Section 29(7) of the PVAT Act. It empowers the designated officer to reassess any under assessment of tax with the prior approval of the Commissioner, which reads thus:- (7) The designated officer may, with the prior permission of the Commissioner, within a period of three years from the date of the assessment order, amend an assessment, made under subsection (2) or sub-section (3), if he discovers under-assessment of tax, payable by a person for the reason that,- (a) such a person has committed fraud or wilful neglect; or (b) such a person has misrepresented facts; or (c) a part of the turnover has escaped assessment: Provided that no order amending such assessment, shall be made without affording an opportunity of being heard to the affected person. 7. A plain reading of Section 29 (7) of the PVAT Act shows that the designated officer within a period of three years from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to following conditions:- a) Wherever amendment has the effect of enhancing the tax liability, notice is required to be given to the person concerned and reasonable opportunity of being heard is to be provided; b) in the event of enhancement of amount of tax or penalty, demand notice in Form VAT-56 shall be served; c) where tax or penalty is reduced as a result of the amendment, the same shall be refunded to the assessee in terms of procedure prescribed under Rule 52. 10. Whether opportunity of hearing is required to be given at the stage of grant of approval has been subject matter of consideration before the Apex Court in various pronouncements. The Supreme Court in Assistant Commissioner, Assessment II, Bangalore and others vs. Velliappa Textiles Limited and another, (2003) 11 SCC 405 relating to grant of sanction for prosecution under Section 279(1) of the Income Tax Act, 1961 had held that grant of sanction is purely an administrative act and no opportunity of hearing is required to be provided to the affected person before according it. It was recorded as under:- 8. The grant of sanction is purely an administrative act and affording of opportunity of he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. Section 29(7) of the PVAT Act nowhere envisages personal hearing to be provided to the dealer before granting of prior permission by the Commissioner. The grant of permission is an administrative function and cannot be termed to be quasi judicial in nature. The prior permission of the Commissioner has been incorporated to safeguard the interest of the dealer so that the designated officer, where he is of the opinion that action is required to be taken, seeks approval of the higher officer of the rank of Excise and Taxation Commissioner. The dealer is provided with an opportunity of hearing at the time when the designated officer after getting approval from the Commissioner proceeds to amend the assessment order. Under the circumstances, the provision in question cannot be termed to be unreasonable, unconstitutional and ultravires. 13. Referring to the judgments relied upon by learned counsel for the parties, suffice it to notice that in all those cases, emphasis has been laid on following the principles of natural justice before passing the final orders. None of these cases relate to grant of opportunity of hearing before according sanction or approval to initiate an action ..... X X X X Extracts X X X X X X X X Extracts X X X X
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