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TMI Blog2014 (5) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the person who has applied for determination. Similarly, proviso to sub section (1) empowers the Commissioner to hold an inquiry at his discretion and while holding such inquiry, he is empowered to take assistance of an officer appointed for the purpose to enable him to decide the question. Commissioner did not keep these requirements in mind while passing the impugned order, in as much as, he neither held any inquiry nor sought any assistance from any officer and nor assigned his reasons for coming to a conclusion. In other words, the impugned decision did not appear to have been rendered after following the procedure prescribed in Section 105 because it did not contain any reason/justification as to how and on what basis and mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on 23.8.2005 (Annexure-A) under Section 105 of the Act to the Commissioner and sought its determination from him in accordance with the provisions of Section 105 ibid. According to the petitioner, the commodity Aluminum conductors was liable to be taxed at 4 % under entry 26 or 37 of Second Schedule. The Commissioner decided this issue by the impugned order dated 5.1.2006 (Annexure- C). He did not accept the contention of the petitioner that it was liable to be taxed at the rate of 4% and instead held that Aluminum Conductors was covered by entry SL. 1 of fifth schedule appended to the Act and was accordingly taxable at the rate of 12.5.%. It is apposite to reproduce the entire impugned order in verbatim infra. ORDER Dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ML Gope, learned counsel for the petitioner and Mr. R Dubey, learned Standing Counsel, Finance for respondents. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the writ petition and while quashing the impugned order, remand the case to the commissioner for deciding the application filed by the writ petitioner afresh on merit keeping in view our observations made infra. Section 105, which is relevant for disposal of the writ petition, reads as under: 105. Determination of disputed questions - (1) If any question arises, otherwise than in a proceedings pending before an Appellate Authority or an Appellate Tribunal or a Court, whether or not, - (a) any person or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the question. (2) Any registered dealer or any association of trade, commerce, industry may apply in the prescribed form and manner to the Commissioner for determination of such question and the Commissioner shall, after giving the applicant a reasonable opportunity of being heard, make an order determining such question. (3) No question which arises from an order already passed, in the case of an applicant, by any authority under this Act or the Tribunal, shall be entertained for determination under this section. (4) No decision of the Commissioner under this section shall affect the validity or operation of any order passed earlier by any Prescribed Authority, Appellate Authority, Appellate Tribunal or any Court. (5) Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. Similarly, proviso to sub section (1) empowers the Commissioner to hold an inquiry at his discretion and while holding such inquiry, he is empowered to take assistance of an officer appointed for the purpose to enable him to decide the question. It must therefore appear from the proceedings that Commissioner has held an inquiry in letter and spirit, collected relevant material by allowing an opportunity to the person to participate in the inquiry and file such material, sought assistance of officer concern, if considers it necessary and then passed the reasoned order justifying his decision on the question. In any event, the decision rendered by the Commissioner must be supported with the reasons which must be based on material fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Needless to observe, the Commissioner will afford opportunity to petitioner to file material in support of their case and would also hear them in the inquiry. We, however, make it clear that we have not applied our mind to the merits of the question raised by the petitioner and hence the Commissioner would not be influenced by our decision while deciding the question on merits and will pass the order strictly in accordance with law on the basis of material filed by the parties concern in the inquiry. Let the matter be decided by the Commissioner within 6 months from the date of production of this order before him. It be done within two weeks from the date of this order by the parties. No cost. - - TaxTMI - TMITax - CST, VAT & ..... X X X X Extracts X X X X X X X X Extracts X X X X
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