9911796707
TMI Blog2018 (7) TMI 1664X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. Now that, the petitioner would submit that he could not appear before the authority due to ill-health. Even at the time of assessment, no defects were found. The present order was passed on the best of judgment basis, disallowing ITC and exemption already claimed. 3. The learned counsel appearing for the petitioner would contend that even though he could not appear before the respondent pursuant to the summons issued by him, it is incumbent on the part of the assessing authority to provide an opportunity of personal hearing. In the instant case, no such personal hearing was fixed nor he was called to appear for personal hearing. Therefore, the order was passed in violation of principles of natural justice and the same is liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing date fixed for personal hearing and called the petitioner to make his submissions. 8. The Division Bench of this Court in similar issue (in SRC Projects Private Limited Vs.Commissioner of Commercial Taxes, Chennai and Another) has categorically held as follows: "8. In order to appreciate the aforesaid contentions, this Court proposes to set out the provision of Section 16(1)(a) of the said Act, which is relevant for our consideration. 16(1)(a): Where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, the assessing authority may, subject to the provisions of subsection (2), at any time within a period of five years from the date of order of the final assessment by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es treatise on Administrative Law (9th Edition). At page 517 of the said treatise the learned author has emphasized that a hearing will normally be an oral hearing. But, in some cases, it is sufficient to give an opportunity to make a representation in writing provided that no adverse materials are disclosed and further the demands of fairness are sufficiently met. 13. Similar views have been expressed in De.Smiths Judicial Review of Administrative Action, (6th Edition) at page 397. The learned author opined that a fair hearing does not necessarily mean that there must be an opportunity to be heard orally, but one is entitled to an oral hearing where fairness requires that there should be such hearing. But, fairness does not require that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... desires, oral hearing is mandatory. The learned Judges held that this requirement is plainly based on considerations of natural justice and fair play (see para.13 at page 274). In this case also in the representation of the petitioner personal hearing was demanded in terms of the said Circular but the same was declined by the Revenue. 15. In the case of Travancore Rayons v. Union of India reported in AIR 1971 SC 862, which is a case under Central Excise and Salt Act, 1944, the question was whether the appellant company is entitled to a personal hearing in the revisional proceedings. Justice Shah, speaking for a Two-Judge Bench of the Honble Supreme Court, held that It is true that rules do not require that personal hearing shall be give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Supreme Court has approved that the Court may resort to contemporaneous construction namely., construction which the authorities have put upon the law for the usage and conduct for longer period of time. The Court applied the said principle in construing the provision of Section 146(2) of the Bombay Municipal Corporation Act. In doing so, the Court referred to and relied upon an old English decision in the case of The Queen Vs. Commrs. of Inland Revenue, (1891) 1 QB 485. Reliance was placed by the Court on the judgment of Justice Stephen at page 489 of the report. In the instant case also the ambit of reasonable opportunity of showing cause under Section 16(1)(a) must be interpreted in line with the said Circular where it has been pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore it is overturned: such a construction commonly referred to as practical construction, although non-controlling, is nevertheless entitled to considerable weight, it is highly persuasive". 22. This Court, therefore, holds that the provision of Section 16(1)(a) of the said Act has to be construed in accordance with the said Circular which is by way of contemporanea exposito. So when a specific demand is made for personal hearing the reasonable opportunity of showing cause should include the same in the interest of fairness in procedure." 9. In the instant case, the mandatory requirement of affording an opportunity of personal hearing was not given to the petitioner and the respondent proceeded to pass orders only because the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
