^-.1 (j;y-ir %^ IN THE HON'BLE 1SGH. COURT OF CHHATTISGARH, BILASPXTR WS.IT PETITION (T) No. 1 PB'TrTlONER : <^ Iqbal Cnamadia, ^^&s^ ^ |SW-^ 1^2" !50U 01 SJin ISUcLK tjllSl L/iiaiua.Gis., aged 54 years, R/o. Vruidavan ^t 1 -r <^UAU11^ ^ Udl ;dalpur, Distt. Bastar [C.G.j PETIT i. 'l'ne Assistant iJomra.ercial Tax Officer, Bastar Circle, Jagdalpui', Distt. Bastar fC.G.) 2. 'T'he Dv. Commissioner of Commercial Tax, Raipur Uistt. Kaipur (U.U.j 2.24»A- JJNDEKARTICLB 38?' OF THE CONSTTTUTION OF INDIA FOR ISSUANCE OF I 1 ? HiGH COURT OF CHHATTISGARH : BILASPUR Single Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. PETiTlONER RESPONDENTS WRIT PETITiON (T) N0.1464/2007 Iqbai Chamadia Versus The Assistant Commerciai Tax Ofricer and another Present: - Shri Sanjay K.Agrawai, counsei for the petitioner. Shri V.V.S.Murthy, Deputy Advocate General, counsel for the respondents. ORAL ORDER (Passed on 18th of ftflarch,2011) By this petition, the petitioner has called in question, the correctness and validity of order dated 22/11/06 passed by respondent No,2/revisionai authority whereby the revision of the petitioner has been dismissed, afRrming the order of assessment made by the assessing authority vide its order dated 17/11/03 (Annexure P/10). 2. The case of the petitioner is that the petitioner was subjected to assessment in the matter of payment of commerciai tax and a show cause notice was issued to the petitioner on 17/9/99. The petiiioner submitted his repiy, specificaily denying that he was ever engaged in saie and purchase of any forest produce either in the mandi or in the open market. Aiong with the repiy, he fiied certain documents in the form of certificate issued in his favour to show that the petitioner was never engaged in sale and purchase of any forest produce at a piace caiied Tokapai. The assessing authority however, passed anorder on 28/10/99 and in his assessment, he heid the petitioner liable for payment of commercialtax in respect of the period from 2/11/95 to 31/3/99, to the tune of .^,'''. t, C; Rs.1,77,2751 -. The assessing authority also imposed a penalty of Rs.3,54,544/-. The aforesaid order of assessment was taken up for revision by the revisional authority, who passed an order on 28/2/2000, setting aside the order of assessment. However, after remand, according to the petitioner, the authority did not consider various aspects of the matter and passed an order on 11/9/20CX), by which the petitioner was again heid liable for payment of commereial tax and penaity. Aggrieved by this order of assessment in the second round, the petitioner successfully preferred a revision. Vide order dated 28/12/01 (Annexure P/9), the revisional authority remanded the case to the assessing officer with a direction to verify as to who has obtained mandi license, make necessary enquiry as per law, grant opportunity of hearing to the petitioner and aiso to consider the matter relating to penaity as is ieviable under Section 27 (6) of the Commerciai Tax Act, 1994 (hereinafter referred to as' the Act of 1994). Thereafter, the assessing authority, as argued by learned counsei for the petitioner, did nothing but mechanicaily repeated the eariier order of assessment passed by it on 11/9/2000, maintaining the order of assessment. Again a revision was preferred which has now been dismissed vide impugned order dated 22/1106. This petition is directed againstthe aforesaid order. 3. Learned counsei fbr the oetitioner vehementiv contended that the impugned order has been passed by the revisionai authority without considering submissions made by the petitioner, which have been recorded in that order and without even adverting to, whether the order passed by the revisional authority eariier was compiied with, by the assessing officer. He further submitted that the assessing authority passed an order of assessment on 17/11/03 (Annexure P/10), a perusai of which wouid show at once that the same is verbitem a /2:^ ^ I fUte* 1 I, '^B»ll 1 -.0 reproduction of earlier order of assessment dated 11/9/2000, which indicates that the assessing authority did not make any verification or made further enquiry or considered the matter reiating to imposition of penalty as was directed by the revisionai authority in its eariier order dated 28/12/01. It is next urged by iearned counsel for the petitioner that the petitioner has been subjected to huge amount of tax and penalty without there being proper enquiry and on baseiess assumption that the petitioner was hoiding iicense for trading in the mandi area. It is then submitted that the order of the revisional authority, for the nrst time, rererred to some report of the Additionai District Magistrate, Jagdalpur which was never in the notice and knowiedge ofthe petitioner and the same has been reiied upon to hoid that the petitioner was engaged in the business of saie and purchase of forest produce as a registered licensee in the mandi. It is lastly submitted that even assuming that the petitioner was liable for payment of tax in respect of the period in question, imposition of penaity could follow oniy after recording categoric finding that the petitioner willfuliy failed to appiy for registration and a satisfaction is required to be arrived at separately, in that regard. In the present case, it is submitted, that was not done either by the assessing authority or by the revisionai authority in their ordere, which have been placea on record. 4. On the other hand, learned Deputy Advocate Generai argued that the petitioner has mostly avoided to participate in the assessment proceedings in ait the three rounds of assessment. He submits that if the petitioner had any grievance with regard to the proceedings of assessment, it was always open for him to make specific pieadings and require the assessing officer to take evidence on record or to demand any material which was sought to be used against him. ^xy '"^'S!'^-^''"" The next submission of learned State counsel is that the order of assessment of the petitioner with regard to his liability for payment of commercial tax is substantially based on the material coilected by the assessing ofRcer which shows that the petitioner was engaged in the sale and purchase of forest produce. He has relied upon the information which has been received from the mandi and the documents collected by the assessing officer, concerning records of sale and purchase of forest produce in Krishi Upaj Mandi, Jagdalpur which records the name of the petitioner. !n addition, he aiso reiies upon a report of Additional District Magistrate, Jagdaipur which shows that the petitioner, in a fact finding enquiry, was found to have indulged in saie and purchase of forest produce. Learned State counsel then submitte'-i that the revisional authority has taken into consideration, a!l the submissions which have been made by the petitione' and found that there was material to support the order of assessment and has rightiy dismissed the revision. 5. The averments made in the petition which have not been denied are that after issuance of the first notice of assessment, the petitioner had submitted his repiy before the assessing ofRcervide 11/09/2000 (Annexure P/7). The petitioner has specificaiiy denied that he was engaged in saie and purchase of forest produce in respect of the period in question nor was he ever registered as licensee of mandi. He had stated that some document was got prepared by someone eise in his name and various transactions have been made which are false. The assessing officer passed an order on 1.1/9/2000 holding the petitioner liabie for payment of tax as aiso penaity. The said order was taken up for revision by the revisionai authority and the revisional authority took into consideration, specific stand of the petitioner and his affidavit and opined that the ^'T^" matter requires reconsideration by the assessing officer. He therefore remanded the matter, however, with certain directions. Thus, directions were firstiy to veriiy as to on whose name the iicense was obtained and then make necessary enquiry giving the petitioner, opportunity of hearing. He aiso observed Uiat at the time of considering the case of reassessment, the assessing authority shall aiso consider on the aspect of penalty leviabie under Section 27 (6) of the Act of 1994, on the basis of facts available on record. The respondents have piaced on record, theorder sheets of the assessing officer as Annexure R/4. A perusal of the same shows that the petitioner appeared before the assessing officer on 25/10/02 and 11/11/02 pursuant to notice, which \was issued on 3/10/02. Thereafter, there was no appearance on behalf of the petitioner on 12/12/02, 8/8/03 and then on 1 7/11 /03, on which date the final order was passed. Neither in the return nor from the order sheets or from the order dated 17/11/03 (Annexure P/10), it is anywhere reflected that the assessing officer has made any verification as was directed to be done by the revisional authority vide its order dated 28/12/01. A perusai of order dated 17/11/03 shows that the same is verbitem reproduction of eartier order of assessment which was passed by the assessing authoritv on 11/9/2000 (Annexure P/8), 6. I have gone through both the orders. There is nothing in the order dated 17/11/03 which shows that the authority had verified the order in the manner directed. Further, there is no consideration of the aspect with regard to the iiabitity of the petitioner to pay penalty under the law, even if it were to be assumed that the petitioner was liable for payment of tax. Therefore, 1 am constrained to hold that the assessing authority did not underteke any further exercise after remand of the case vide order dated 28/12/01. Even if the m petitioner did not appear, it did not absolve the assessing authority tocarry out necessary verification before passing fresh order of assessment as that was the direction given to the assessing authority by the revisionat authority, binding upon it. Even the aspect with regard to penalty was aiso required to beconsidered, even if, the petitioner did not remain present on subsequent dates of hearing. 7. The order passed in revision which is now challenged shows that the revisional authority has not considered this material aspect of the matter before affirming the order passed by ttie assessing authority. The revisionat authority appears to be swayed by some report of the Additionai District Magistrate, Jagdalpur which is said to be against the petitioner. When the revisional authority directed the assessing officer to make necessary verification, in the absence of any verification made, the assessing authority committed serious illegaiity in exereising its jurisdiction which glaring aspect has not been taken into consideration by the revisional authority. The revisional authority was obliged to consider the correctness and validity of order of assessing authority by verifying as to whether the assessing officer made necessary verification by referring to the records but that has aiso not been done. Moreover, leviability of tax is one aspect. imposition of penalty wouid depend upon a specific finding that the petitioner, wilifuliy faileci to apply for registration during the period, he carried on business concerned. This part of consideration has not been done by any ofthe authorities, whether it be assessing authority or revisional authority. 8. In the result, i have to hoid that the order passed in revision is iliegal and unsustainable in iaw. The order passed in revision is accordingiy set aside. The case is remanded back to the revisional authority to reconsider the matter in the light of observations made by this Court and provisions of Commerciat Tax Act rp ..^"^•1 \^ 8i^.,.-... '^ !^^^'^'^. ',; '^S.^^^.'^, ^j -^). DeepEi as also material produced by the petitioner and the evidence cotlected by the assessing ofncer and then pass order in accordance with law. The petition is accordingly allowed to the extent and in the manner indicated as above. No orders as to costs. Sd/- Manindra Mohan Shrivastava »*>