IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9407 of 2009 LALOO SINGH Versus THE STATE OF BIHAR & ORS ----------- 4 05/10/2009 Learned counsel for the petitioner is permitted to correct the description of respondent nos. 4 and 5 as Joint Commissioner, Magadh Division, Gaya and the Assistant Commissioner, Commercial Taxes, Sasaram Anchal, Sasaram. Heard learned counsel for the parties. A copy of the counter affidavit filed on behalf of the State was made available for our perusal. Office is directed to locate the said counter affidavit said to have been filed on 17.9.2009 and place it on record. In paragraph 12 of the writ petition a categorical statement has been made that no notice was served upon the petitioner as he was at Varanasi under treatment of a Doctor and for that reason the petitioner could not appear before the Assistant Commissioner, Commercial Taxes, Sasaram Anchal, Sasaram. From the impugned order of assessment contained in annexure- 1 dated 28.06.2005 it appears that the order was passed ex parte and no body had appeared on behalf of the petitioner. Thereafter the appeal and the revision preferred by the writ petitioner were also dismissed by the orders contained in Annexures 2 and 3. Counter affidavit filed on behalf of the State shows that on more than one occasion, notices were sent to the petitioner but there is no material to show that the notice was actually received by the - 2 - petitioner or served upon him. There is no categorical averment also to that effect. In view of the categorical statement in paragraph 12 of the writ petition that the petitioner had no notice of the assessment proceeding, the impugned orders contained in annexures 1,2 and 3 are set aside and the matter is remitted back to respondent no. 5, the Assistant Commissioner, Commercial Taxes, Sasaram Anchal, Sasaram for passing a fresh order in accordance with law after giving an opportunity of hearing to the petitioner. For the purpose of availing the opportunity of hearing before respondent no. 5, the petitioner is directed to appear before him within a period of four weeks from today along with a copy of this order. Thereafter respondent no. 5 shall fix a date for hearing and passing order in accordance with law. With the above direction/observation, this writ application is allowed. (Shiva Kirti Singh, ACJ.) (Shyam Kishore Sharma, J.) AMIN