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TMI Blog2015 (5) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal preferred by this petitioner within a period of four weeks from the date of receipt of the copy of the order passed by this Court. - It is high time for the State either to change the Assessing Officer or Commissioner, Commercial Taxes because none of them can make assessee's appeal or revision infructuous and can encash the amount lying in the nationalized bank in the manner in which this Assessing Officer has realized the money. - Appeal disposed of. - WP (T) No. 6400 of 2014 - - - Dated:- 27-2-2015 - D. N. Patel And Pramath Patnaik, JJ. For the Petitioner : Mr S D Sanjay, Sr. Adv. Mr Sumeet Gadodia, Adv. For the Respondents : Mr Ajit Kumar, AAAG Mr S Sundaram, Adv. JUDGMENT Per D. N. Patel,J. 1. This writ petition (Tax) has been preferred by the petitioner challenging the order passed by the respondent on 10th December, 2014, which is at Annexure-8. Attachment order has been passed by the respondent authorities for non payment of the amount of the Value Added Tax under Jharkhand Value Added Tax Act, 2005 for the months of May, June and July, 2005 for which this petitioner has already preferred a revision application before the Commissioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, again direction was sought for from the Commissioner, Commercial Taxes, Jharkhand, Ranchi, and the order was passed by him which is at Annexure-7 dated 5th December, 2014. Thus, for previous period i.e. January, February, March and April, 2014 not only the scrutiny order passed by the Assessing Officer was quashed vide order dated 16th September, 2014 by Commissioner, Commercial Taxes, but, further guidance has also been given vide order dated 5th December, 2014 which are at Annexures- 4 7 respectively to the memo of this petition. Counsel appearing for the petitioner has further submitted that previously also the very same Assessing Officer has committed similar type of mistakes and once again during the pendency of this revision. This fact is stated in the supplementary affidavit filed by the petitioner. 4. Assessment order was passed for the year 2011-2012. Now under Section 79 of the Jharkhand Value Added Tax Act, 2005 an appeal can be preferred within a period of 30 days from the date of receipt of a copy of the order and the petitioner had preferred an appeal also before expiry of the limitation period, but, the very same Assessing Officer has attached the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed about the ex-parte order passed by the Assessing Officer. Stay application is also pending before the Commissioner, Commercial Taxes. It appears from the facts that the arguments are over and the judgment has been reserved by the Commissioner, Commercial Taxes. IV. It appears that the Assessing Officer has hurriedly passed the order dated 10th December, 2014 which is at Annexure-8. V. It further appears from the supplementary affidavit filed by the petitioner that for the assessment year 2011-12, the very same Assessing Officer had passed an order which is appealable within a period of 30 days. This petitioner has also preferred an appeal on 29th day viz. before the statutory date of preferring appeal is over. The attachment order was passed by the very same Assessing Officer. VI. It ought to be kept in mind by the Assessing Officer that when assessee is regularly paying a huge amount of tax and consistently the orders passed by the very same Assessing Officer are being quashed, he should wait til l the judgment, reserved by the Commissioner, Commercial Taxes, is pronounced. The amount of this petitioner was already with the nationalized bank. The money of the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed of after hearing the assessee and bearing in mind the guidelines in KEC International Ltd. (supra); 3. If the Assessing Officer has taken a view contrary to what has been held in the preceding previous years without there being a material change in facts or law, that is a relevant consideration in deciding the application for stay; 4. When a bank account has been attached, before withdrawing the amount, reasonable prior notice should be furnished to the assessee to enable the assessee to make a representation or seek recourse to a remedy in law; 5. In exercising the powers of stay, the Income Tax Officer should not act as a mere tax gatherer but as a quasi judicial authority vested with the public duty of protecting the interest of the Revenue while the same time balancing the need to mitigate hardship to the assessee. Though the assessing officer has made an assessment, he must objectively decide the application for stay considering that an appeal lies against his order; the matter must be considered from all its facets, balancing the interest of the assessee with the protection of the Revenue. The above order in UTI (supra) was brought to the notice of the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the judicial conscience. The entire action appears to have been directed to make the Tribunal and respondent No.2 helpless so that no relief can be granted in favour of respondent No.2. Leaving aside the case laws in favour of respondent No.2, on first principle itself no appellate authority and much less the Tribunal can be a silent spectator to the arbitrary and illegal actions on the part of the Assessing Officer so as to frustrate the legal process provided under the Act. (Emphasized supplied) VIII. In view of the aforesaid observations also the respondents authority ought not to have attached the amount which is lying in the nationalized bank. The Assessing Officer should not have attached the bank accounts, specially when the judgment is reserved by the Commissioner, Commercial Taxes in the revision application. It is expected from these two officers that similar error will not be repeated henceforth. We also direct the Commissioner, Commercial Taxes to give proper guidance to his/her subordinate officers in vertical hierarchy that whenever high ranking authority is reserving the judgment, there is no need of attachment of bank accounts. Assessee ought to be giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed. Normally a notice of not less than ten days shall be given before the auction is conducted; but this condition may be waived in case of goods of perishable nature. (b) Intending bidders shall deposit as earnest money a sum equal to ten per centum of the estimated value of goods; (c) At the appointed day and time, the goods shall be put up in one or more lots, as the officer conducting the auction sale may consider desirable, and shall beknocked down in favour of the highest bidder subject to confirmation of the sale by the circle in-charge conducting auction or an officer subordinate to the said circle in-charge. (d) The caution purchaser shall pay the sale value of the goods in cash immediately after the sale and he will not be permitted to carry away any part of the goods until the sale has been confirmed by the authority specified in clause (a) and full value has been paid by him. If the successful bidders fails to deposit the purchase money in full, the earnest money deposited by him shall stand forfeited to the State Government. The earnest money deposited by the unsuccessful bidders shall be refunded to them after the auction is over; (e) If the order-imposin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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