9911796707
TMI Blog2024 (1) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... d hereinabove, it is made clear that if eventually the demand is confirmed against the assessee, there shall not be any interest claimed under the statute between the date on which the amounts were credited by the bank and the date of refund as directed hereinabove; since the State had the benefit of the amounts in its coffers. A cost of Rs. 5000/- imposed on the Officer, who issued the demand produced as Annexure-16 and appropriated the money from the bank account of the assessee/petitioner. Petition allowed. - HONOURABLE THE CHIEF JUSTICE K. VINOD CHANDRAN AND HONOURABLE MR. JUSTICE RAJIV ROY Appearance : For the Petitioner/s : Mr. Gautam Kumar Kejriwal, Advocate Mr. Alok Kumar Jha, Advocate Mr. Mukund Kumar, Advocate Mr. Akash Kumar, Advocate Mr. Aditya Raman, Advocate For the Respondent/s : Mr. Vivek Prasad, GP-7 ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) We are again faced with the problem of valiant tax executives clothed with judicial powers remembering their former capacity at the expense of the latter (sic)- as stated in R.S Joshi, Sales Tax Officer, Gujarat and Others v. Ajit Mills Limited and Another; (1997) 4 SCC 98. 2. Bereft of the facts leading to the writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant pays in full the amount of tax, interest, fine, fee and penalty arising from the impugned order as admitted by him and a sum equal to twenty per cent of the remaining amount of tax in dispute, in addition to the amount paid under Section 107(6). Hence, the admitted amount of tax and other dues have to be satisfied along with twenty per cent of the tax in dispute; in addition to the ten per cent paid under Section 107 (6). On such payment being made, not only is the instituted appeal maintainable; under sub-section (9) of Section 112, there is a deemed stay of the recovery proceedings for the balance amount till the disposal of the appeal. Hence, when a proper appeal is instituted before the Appellate Tribunal, with the payments as required for maintaining the appeal, then there is a statutory embargo from making any recovery based on the assessment order or the first appellate order. 9. It is in this context that the proviso to Section 78 has to be looked at. Section 78 has the nominal heading Initiation of recovery proceedings and requires a taxable person to satisfy an order passed under the BGST Act by paying up the amounts due within a period of three months from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the representations is absent. The philosophy behind natural justice is, in one sense, participatory justice in the process of democratic rule of law. 76. We have been told that wherever the Parliament has intended a hearing it has said so in the Act and the rules and inferentially where it has not specificated it is otiose. There is no such sequatur. The silence of a statute has no exclusionary effect except where it flows from necessary implication. Article 324 vests a wide power and where some direct consequence on candidates emanates from its exercise we must read this functional obligation. [underlining by us for emphasis] 12. The aforesaid declaration of law made with respect to a decision cancelling a poll, applies across the board to every judicial and quasi-judicial order and action taken. The principles of natural justice stand embedded in every coercive action taken by a statutory authority, even within the four corners of the law; when it could, in the normal circumstances cause prejudice to the person against whom such proceedings are levelled. The recording of reasons as coming forth in the provision to Section 78 are not to be recorded surreptitiously and kept i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies, presumably for reason of the non-constitution of the Tribunal, the three months limitation period stipulated under sub-section (1) of Section 112 of both the enactments are extended to the latter of the following dates; (i) of communication of order or (ii) the date on which the President or the State President, as the case may be, of the Appellate Tribunal after its constitution under Section 109, enters office. It is also stipulated that the six month period provided under Section 112(3) shall also stand extended by the very same period from the aforesaid dates; whichever date falls later. Hence, there could not have been a recovery surreptitiously, by issuing notices to the banks and coercing them to pay the amounts, that too the entire due amounts, including the tax, interest and penalty. 15. The Legislature had, in the event of an appeal filed to the Tribunal, only intended twenty percent of the tax dues alone to be paid; on which payment the entire demand was liable to be stayed till the disposal of the appeal. However, admitted tax; interest, fine and penalty also have to be satisfied. Hence even if coercive action could have been taken the tax officer should have confi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
