IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4087 of 2010 M/S Britannia Industries Ltd., a Company incorporated under the provisions of the Companies Act, 1956 having its Registered Office at 5/1A, Hungerford Street, Kolkata – 700 017 and one of its Branch [Depot] situated at Didarganj, Patna City, Patna through its Authorized Signatory, Manoj Kumar Agrawal s/o Shri Kailash Prasad Agrawal, r/o Diamond City West, Flat no.7C, Tower – 6, 18, Ho-Chin-Min Sarini, P.S. – Behala, Kolkata …………. Petitioner Versus 1. The State Of Bihar through the Principal Secretary-cum- Commissioner of Commercial Taxes, Vikash Bhavan, Bailey Road, Patna 2. The Dy. Commissioner of Commercial Taxes, In-charge Patliputa Circle, Patna 3. The Assistant Commissioner of Commercial Taxes, Patliputra Circle, Patna ………….. Respondents ----------- For the Petitioner: Mr. S.D. Sanjay, Advocate For the respondents: Mr. Lalit Kishore, AAG III 2 9/3/2010 Invoking the jurisdiction of this court under Article 227 of the Constitution of India the assessee - petitioner has called in question the legal propriety of the order dated 21.7.2009 passed by the assessing officer and the order dated 24.2.2010 passed by the revisional authority, whereby the said authority has affirmed the said order. The only question that has been raised by Mr. S.D. Sanjay, learned counsel for the assessee – petitioner, that the assessing officer on 14.7.2009 has 2 written in the order that the assessee had taken no steps whereas the order impugned dated 21.7.2009 would reflect that on behalf of the Company one Mr. Ajit Kumar Sinha, learned counsel, had entered appearance and prayed for some time to file some necessary documents. It is further contended by Mr. Sanjay that one opportunity should be granted to him so that the assessee –petitioner can satisfy the assessing officer that the tax and the penalty for the period 1.1.2009 till 31.5.2009 imposed by the assessing officer is unjustified as the tax has been paid in a different circle. Mr. Lalit Kishore, learned counsel for the State, supported the orders passed by the authorities and contended that adequate opportunity was given by the assessing officer to the assessee – petitioner and, therefore, there is no warrant to quash the orders passed by the assessing officer and that of the revisional authority. To appreciate the rival submissions raised at the Bar, we have carefully perused the order passed by the assessing officer which has been concurred by the 3 revisional authority. On a scrutiny of the same, it transpires that the assessing officer had taken note of the fact in his order dated 14.7.2009 that the assessee – petitioner had not taken any steps. He has referred to certain aspects in the body of the order. While the said aspect has been emphasized by Mr. Sanjay, learned counsel for the assessee – petitioner, on the contrary Mr. Lalit Kishore, learned counsel for the State, stated that the application was not moved. There can be no scintilla of doubt that there is distinction between filing of an application and moving the same. However, as certain documents were sought to be pressed into service which could not have been of some assistance, as Mr. S.D. Sanjay would vehemently propound, we are inclined to set aside the orders passed by the revisional authority as well as that of the assessing authority, subject to the condition that the assessee – petitioner shall deposit a sum of Rs.60,000,00/- before the assessing officer on or before 22nd of March, 2010. Thereafter, the assessing officer shall fix a date on 7th of April, 2010, on which date the 4 representative of the assessee shall remain personally present. The hearing of the case shall commence on that day and thereafter shall continue day today till the order of assessment is framed. We have fixed the schedule so that there can be no grievance on the part of the assessee that he has not been afforded an opportunity of hearing. Needless to emphasise, lanceting the orders passed by the authorities below do not necessarily mean that we have expressed anything on the merits of the case. We have only quashed the same as we have felt that the assessee – petitioner should be afforded an opportunity of being heard. Be it further noted, our direction to deposit Rs.60,000,00/- as an interim measure is without prejudice to the contentions to be raised before the assessing officer. It is also clarified that if the assessee does not deposit the amount as stipulated above, the impugned orders shall come to life automatically. As we have quashed the impugned orders, the order dated 3.3.2010 coming as a sequester in the shape of Annexure -7 also stands quashed. 5 The writ petition is accordingly disposed of. Neyaz/ (Dipak Misra, CJ.) (Mihir Kumar Jha, J.)