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TMI Blog2020 (3) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... asons are required to be recorded, which is a mandatory provision, the review order needs to be looked into, to see whether it passes the test of Rule 32 of the Rules. It is submitted by the learned counsel for the State that when the assessee admits that he has paid the tax at the maximum rate prescribed under the State Act, sufficient reason has been given by the Assessing Authority to impose the surcharge on the transactions made by the petitioner, particularly when the original assessment order is not challenged - We cannot subscribe to the view of the learned counsel for the State on this count. We find that what has been stated by the Assessing Authority in his review order, is only that in view of the objection raised by the Audit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plications are hereby, quashed. Application allowed. - W.P. (T) No. 7835 of 2011 With W.P. (T) No. 7819 of 2011 - - - Dated:- 5-2-2020 - HON BLE MR. JUSTICE H. C. MISHRA AND HON BLE MR. JUSTICE DEEPAK ROSHAN For the Appellant: Ms. Amrita Sinha, Advocate For the Respondent-State: Mr. Atanu Banerjee, Sr. S.C.-III And Mrs. Moushmi Chatterjee, AC to Sr.S.C-III ORDER As both these writ applications involve the same question of law, they have been heard together and are being disposed of by this common Judgment. 2. Heard learned counsel for the petitioner and learned counsel for the State in both the Writ applications. 3. The matters under challenge are the review of the assessment of the sales tax, relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king any such calculation any such dealer shall be deemed to be a dealer liable to pay tax under the tax law of the appropriate State, notwithstanding that he, in fact, may not be so liable under that law. 4. The assessment of the tax was accordingly made by the Assessing Authority on 08.12.2005, and the said tax was also paid by the petitioner. Subsequently, the matter was reviewed pursuant to an audit objection, and after getting the consent of the Commissioner of the Commercial Taxes on 23.06.2009, and the assessment order was reviewed by the impugned order dated 01.10.2009, by the Assessing Authority, imposing surcharge on the assessed tax. 5. The audit objection has been brought on record, which shows that since the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from the record, but since in the present case surcharge was not leviable under the CST Act, there was no mistake while making the original assessment of tax, and as such, no case for review was made out. Learned counsel also submitted, placing reliance upon Rule 32 of the Rules, that the review was permissible only after recording the reasons for doing so. It is submitted by learned counsel that in the review order dated 01.10.2009, whereby the surcharge was imposed upon the petitioner, no reason whatsoever has been assigned by the Assessing Authority for reviewing the order, showing his independent application of mind, except repeating the audit objection. 7. Placing reliance on Section 8 (2) of the CST Act, learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned counsel for the petitioner. It is also submitted by learned counsel for the State that sufficient reasons have been stated in the review order by the Assessing Authority, and there is no illegality in the review order on this score. 10. We however, do not propose to enter into other questions of law raised by the learned counsel for the petitioner, in view of the express wordings of Rule 32 of the Bihar Sales Tax Rules, which reads as follows:- 32. Review.- (1) When any authority appointed under section 9 reviews under section 47 any order passed under the Act it shall record reasons for doing so. *** *** *** . 11. Since this Rule clearly says that before passing the review order under the Act, the reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the Rule requires the Assessing Authority to record his reasons in writing, that means the Assessing Authority has to make out his own subjective satisfaction about the objection raised by the audit team, and if the Assessing Authority finds that the objection raised by the Audit Team is sustainable, he shall proceed to review order. He cannot proceed to review the order only on the basis of the objection raised by the Assessing Authority, without application of his own independent mind. Rule 32 of the aforesaid Rules is absolutely clear in these terms. 14. Since, we find that no reason has been assigned by the Assessing Authority in the review order dated 01.10.2009, the same cannot be sustained in the eyes of law. Accordingly, both ..... X X X X Extracts X X X X X X X X Extracts X X X X
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