1 HIGH COURT OF MADHYA PRADESH: BENCH: INDORE (DIVISION BENCH: HON.MR.JUSTICE SHANTANU KEMKAR AND HON.MR.JUSTICE PRAKASH SHRIVASTAVA) WRIT PETITION NO.9634/2011 M/s.Indian Rubbers & Reclaims Ltd .... Petitioner Vs. The Commercial Tax Officer cum Additional Tehsildar and others ... Respondents For petitioner: Shri P.M.Choudhary, learned counsel. For respondents: Ms.M.Ravindran, learned Dy.GA. --------------------------------------------------------------------------------- O R D E R (Passed on 13th December, 2011) Per Prakash Shrivastava,J:- This order will also govern the disposal of the Writ Petition No.9635/2011, 9636/2011 and 9637/2011, [2] In these Writ Petitions the petitioner has challenged the orders even dated 29/12/2010 (Annexure P.1) passed by the Assistant Commissioner, Commercial Tax, Indore Division-2, Indore imposing penalty under Section 69 of the Madhya Pradesh Vanijya Kar Adhiniyam (for short “the Act”). The petitioner has also challenged the consequential recovery notices. Since the orders under challenge are similar in nature 2 in respect of the same assessee, therefore, the Writ Petitions are being disposed of by this common order. [3] The assessment period involved in these Writ Petitions are as under:- Writ Petition Number Assessment Period 9634/2011 1/4/1998 to 31/3/1999 9635/2011 1/4/1999 to 31/3/2000 9636/2011 1/4/2000 to 31/3/2001 9637/2011 1/4/2001 to 31/3/2002 [4] In brief the petitioner who is a registered dealer purchases crude oil from other registered dealers as also imports it from outside the State of Madhya Pradesh and after refining it a substantial quantity of the oil is dispatched by the petitioner, out of the State of Madhya Pradesh by way of sale in the course of Inter State Trade and Commerce. For the relevant assessment periods, the petitioner had claimed that it was not liable to pay tax on the ground that the process of refining of oil is excluded from the definition of manufacture but the said plea of the petitioner was not accepted by the assessing authority. The assessing authority had framed the assessment and had also initiated the penalty proceedings under Section 69 of the Act by issuing notice to the petitioner. The petitioner had filed a reply to the show cause notice and the Assistant Commissioner, Commercial Tax, Indore-Division-2 had passed the impugned 3 orders imposing the penalty under Section 69 of the Act. [5] Learned counsel appearing for the petitioner submitted that the Assistant Commissioner has not considered the reply to the show cause notice filed by the petitioner and has passed a cryptic orders imposing the penalty in the mechanical manner. [6] Learned counsel for respondents has supported the impugned orders. [7] Having heard the learned counsel for parties and on the perusal of the record, we have noticed that while passing the impugned orders, the Assistant Commissioner has not assigned any reason for imposing the penalty except observing that the explanation of the dealer is not in accordance with law. The impugned orders indicate that the reply to the show cause notice which was filed by the petitioner and the explanation submitted by him has not been considered by the Assistant Commissioner in proper perspective. The impugned orders suffer from the vice of non application of mind, non assigning of reasons and appears to have been passed in a mechanical manner. The impugned orders in all the Writ Petitions are similarly worded and they suffer from same illegality. The Assistant Commissioner was required to examine that the requisite conditions contained in Section 69 are satisfied before imposing 4 the penalty and was also required to consider the explanation furnished by the petitioner which he has failed to do. [8] In view of the above, the impugned orders (Annexure P.1) cannot be sustained and are set aside. The Assistant Commissioner, Commercial Taxes is directed to consider the matter afresh after giving an opportunity of hearing to the petitioner. The petitioner will be at liberty to raise all such grounds before the Assistant Commissioner as permissible in law and the Assistant Commissioner will pass fresh reasoned and speaking order in accordance with law. [9] The Writ Petitions are accordingly disposed off. [10] The original order be kept in the file of WP No.9634/2011 and copy thereof be placed in the file of other connected Writ Petitions. (Shantanu Kemkar) (Prakash Shrivastava) JUDGE JUDGE VM