AGK AGK AGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.707 OF 1994 New India Mosaic & Marble Co. (Private) Limited ..Petitioner V/s. Central Board of Direct Taxes & Another ..Respondents. Mr.Shailesh Thakkar with Mr.Uttam i/by Pardiwala & Co. for the petitioner. None for the respondents. CORAM : P.B. MAJMUDAR & J.P. DEVADHAR, JJ. DATED : 25TH NOVEMBER, 2008 P.C. : 1. Heard learned counsel for the petitioner. None for the respondents, though served. 2. By this petition, the Petitioner company has challenged the order which is annexed at Exhibit.M, O and Q. The petitioner-company has filed an application before C.B.D.T., in June 1992 for approval before shifting the Industrial Undertaking from Urban area to backward area in District Thane. Detail enquiry was conducted by the Department in this behalf. The C.B.D.T. rejected the application of the petitioner on the basis that the conditions prescribed under Section 280ZA has not been complied with. The order of the department dated 29-1-1990 is annexed at Exhibit "M". The grievance of the petitioner is that the order is passed without hearing and without informing him as to which of the conditions in Section 280ZA of the Income Tax Act, 1961 has not been complied with by the petitioner. The petitioner, thereafter filed a review petition on 8-4-1991 requesting the authorities to inform him as to which conditions were not satisfied by the petitioner and as to on what material it can be said that the provisions of Section 280ZA has not been complied with by the petitioner. In the review petition, the petitioner has given detailed facts of his case. The said review petition has been rejected by an order dated 23-4-1992 by passing one line order to the effect that the matter has been carefully considered by the Board and it is regretted that the request cannot be acceded to. The petitioner has, therefore, approached this Court by challenging the aforesaid orders at Exhibit "M", "O" and "Q". 3. The learned counsel for the petitioner submitted that the first order (Exhibit "M") was passed in a very cryptic manner and no reasons have been given to point out as to on what basis it can be said that the petitioner has not complied with the condition prescribed in Section 280ZA of the Income Tax Act, 1961. It is submitted that before passing the above order, no hearing was given to the petitioner and even though subsequently in review application, the petitioner made detail averments, even that review application was rejected without giving any reasons for rejection. 4. During the course of hearing, learned counsel for the petitioner submitted that subsequently by an order dated 24/29-6-1992, the petitioner was informed that since the petitioner has shifted his factory before the application was made, the application was rejected. The learned counsel for the petitioner submitted that even this is factually incorrect as the petitioner has shifted his factory after making such application. 5. Though none appeared for the respondent, we have gone through the affidavit in reply filed by the department in the writ petition, wherein same stand is reiterated that factory has been shifted before making an application. 6. We have heard the learned counsel for the petitioner and we have gone through the petition and reply. In our view, at the time when the order in original at Exhibit "M" was passed, the respondent was required to give hearing to the petitioner. No order which may have civil consequences can be passed without giving an opportunity of being heard. It is true that subsequently a decision has been taken after passing the order in original (Exhibit "M"), but in that communication also it is required to be noted that the say of the petitioner that he had not shifted the factory or had not committed breach of any of the provisions of Section 280ZA has not been properly dealt with. In any case, in our view post facto decision after passing first order by giving reasons to the earlier order cannot save the situation. Before taking the decision, the department should atleast inform the petitioner in advance as to how his application cannot be entertained and as to how he has breached the conditions prescribed under the Act. 7. Considering the said aspect, we deem it proper to set aside the impugned order by directing the respondent to take fresh decision after giving an opportunity of hearing to the petitioner. Whether the petitioner has shifted the factory before making an application or subsequently is a question to be decided by the authorises after hearing the petitioner. On this aspect, we are not expressing any opinion as it is left to the authorities to take fresh decision in this behalf. The matter is, therefore, sent back to the authorities to take fresh decision in accordance with law after considering the say of the petitioner and the records as also after giving an opportunity of hearing to the petitioner. 8. The impugned orders at Exhibit "M", "O" and "Q" are accordingly set aside. The respondents are directed to take fresh decision in accordance with law after considering the record and say of the petitioner as also after giving an opportunity of hearing to the petitioner. The respondents shall hear the matter and pass appropriate order as expeditiously as possible and in any case on or before 30-4-2009. The respondents are further directed to communicate the decision so taken to the petitioner in this behalf. 9. Rule is accordingly made absolute to the aforesaid extent with no order as to costs. (P.B. Majmudar, J.) (J.P. Devadhar, J.)