TMI Blog1976 (8) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... on a turnover of Rs. 6,57,006.10 and brought the same to tax at the rates 3-1/2 per cent, 5 per cent and 10 per cent. It appears that the appellant had asked for time on the ground that the account books were with auditors and the letter asking for such adjournment is also available on record at p. 35 of the assessment file. The case was posted for hearing on the same day. But the assessing authority seems to have passed the order on 24th Jan., 1973 itself without seeing the appellant s application for adjournment available on record with the rubber-stamp showing the date of receipt as 24th Jan., 1973. In fact the assessing authority has specifically mentioned in the assessment order "there was no response at all". Actually the assessing au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d no reason to expect that the assessing authority would go back on his clear written orders granting its request for reopening the assessment. He therefore claimed that there was no delay and that at any rate the delay, if any, ought to have been condoned in the special circumstances of the case. An affidavit was also filed by the Manager as to the facts. It was stated that the assessment was not only reopened under s. 14 but the accounts were examined thereafter. The AAC however felt that the case was not fit for condonation of the delay on the ground that there was no evidence to show that the appellant had applied for reopening of the assessment under s. 14 though the reply of the assessing authority dt. 24th Sept., 1973 has been produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x-parte order came to be passed. Actually the ex-parte order did not take into consideration the request for adjournment received on the day of hearing. No doubt the learned State Representative would say that the appellant was already informed that there would be no further adjournment. But the appellant had asked for adjournment on the ground that the accounts were under audit to which the appellant s account books were liable. AT any rate the assessing authority ought to have dealt with the application before dismissing the same. He had not done so and the assessment order is not valid for lack of opportunity for more than one reason viz. in not considering the request for adjournment and in passing the assessment order on date of hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt the delay technically has been worked out at 816 days. But the appellant has had no reason to assume that he had to file an appeal. It bona fide believed that there was sufficient alternative remedy under s. 14 of Act. In fact the appellant also got an order in its favour on 9th July., 1973. Only on 4th May, 1975, the appellant was aware that the subsequent assessing authority did not stand by the earlier order. It filed a regular appeal within a fortnight after receiving this communication. The Madras High Court in Bay s Medicals vs. State of Madras, reported in 20 STC 259 at 260-261 observed as under: "We are unable to accept that conclusion. Whether the assessee was entitled to the adjustment that he asked for, is a different matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are no circumstances or facts in these cases to assume that when the assessee invoked Art. 226 of the Constitution and sought the assistance of this Court to quash the assessment orders, they acted otherwise than bona fide. We are inclined to think that they must have honestly believed, perhaps on advise, that they could get the relief they wanted in the writ petitions. Writ petitions are no doubt, nor encouraged when alternative remedies are available. But the exercise of the discretion by the various High Courts in this matter has not been uniform, though certain propositions in regard to that matter may be considered to have got recently settled. We cannot, as we think, approach the question of sufficient cause from the result of the Wr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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