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TMI Blog2024 (5) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... of fairness of an adjudication proceeding. Unless such reasons are given in black and white, the adjudication order may remain laconic. Second, assuming for the sake of submission that the adjudicating authority had chosen to reject the explanation submitted by the petitioner and such rejection may have been valid, another fatal error has been committed in the adjudication proceedings, insofar as no reason had been assigned by the adjudicating authority in taxing the turn over on best judgement basis - the adjudicating authority has not assigned any reason to submit such turnover at the highest rate of tax i.e. @ 28%. In doing that he has acted unmindful of the fact that it was the further claim of the petitioner arising from the same books of accounts and that part of turnover was exempt. In the present case, the petitioner was not at fault for the delay in the proceedings. The notice was issued late. The petitioner responded in writing and submitted his application. That has been rejected without assigning any reasons. The adjudication order is clearly laconic - even if the petitioner was relegated to the forum of the appeal, irrespective of the fate in that appeal, the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected to tax @ 28%. Also, without specifying any rate of interest or the period for which such interest may be charged, against demand of tax Rs. 40,45,214/-, interest Rs. 44,90,520.02/- has been demanded. Thus, the adjudication order dated 31.12.2023 is described as wholly arbitrary and unreasoned. The reasoning given by the adjudicating authority reads as below : 6. In such facts, we had required the learned Standing Counsel to obtain instructions. Upon instructions, learned Standing Counsel could not dispute the correctness of the submission advanced by learned counsel for the petitioner that the impugned order dated 31.12.2023, is non-speaking. 7. In view of the above, no useful purpose may be served in keeping the present petition pending or calling for any counter affidavit, at this stage. 8. The impugned order is wholly non-speaking both with respect to rejection of the explanation furnished by the petitioner and also with respect to application of rate of tax on the commodities dealt with by the petitioner. 9. Here, it may be noted, according to the petitioner he had dealt with two types of commodities (i) taxable namely Pulses and the other (ii) exempt namely Paddy and Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der is clearly laconic. 13. Thus, section 107(11) of the Act reads as below : The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against but shall not refer the case back to the adjudicating authority that passed the said decision or order : Provided that an order enhancing any fee or penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund or input tax credit shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order : Provided further that where the Appellate Authority is of the opinion that any tax has not been paid or short-paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised, no order requiring the appellant to pay such tax or input tax credit shall be passed unless the appellant is given notice to show cause against the proposed order and the order is passed within the time limit specified under section 73 or section 74. 14. Thus, even if the petitioner was relegated to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee and it does not claim a right to frame ex parte assessment orders. It contends, the opportunity for personal hearing is not inherent in the right to participate in the assessment proceedings. The assessee may participate in the assessment proceedings by furnishing his written reply. If however he seeks to avail opportunity of personal hearing, he may necessarily make a specific request, in that regard. 7. That may never be accepted. Assessment proceedings by very nature, often involve disputed question of facts and law. By merely submitting written explanations, facts and law may not become clear, on their own. Both with respect to computation of taxable receipts as also with respect to expenditure incurred and allowances and exemptions claimed, facts and explanations thereto are not only required to be pleaded and noted but are necessary to be discussed. It is not uncommon that in the course of a judicial or quasi judicial proceeding the written document may be read in more than one way. That is also true of all explanations and replies. Also, language and writing are a mode of communication. They vary from person to person. Often same or similar thoughts are expressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer by way of a normal practice, we foresee such situations are bound to arise in the normal course of things. In any case, the assessee would have lost one opportunity and tier of appeal, for no fault on its part. 11. Therefore, the word request used under Section 144B(6)(vii) and (viii) only imply, where an assessee may furnish his written reply to the show-cause notice but not opt to avail opportunity of personal hearing, it may not be mandatory for the Assessing Officer to grant such opportunity of personal hearing if he intends to accept the explanation furnished. He may pass appropriate ex parte order accepting the explanation furnished by the assessee. If however, on reading the explanation furnished, the Assessing Officer maintains his tentative opinion to pass the assessment order as proposed, that may be adverse to the assessee, he would necessarily fix a date for personal hearing and communicate the same to the assessee, through electronic mode (as provided under the Act). Thereafter, it would be for the assessee to avail that opportunity. If the assessee fails to avail that opportunity, the Assessing Officer may proceed in accordance with law. 12. Seen in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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