TMI Blog2014 (3) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... tice are to be excluded, the Parliament could have said so expressly - ordinarily unless excluded by operation of a statute, the superior courts while exercising power of judicial review shall proceed on the basis that assignment of reasons is imperative in character. While applying the principles of natural justice the court must also bear in mind the theory of useless formality and the prejudice doctrine – Justice is not only be done but manifestly seem to be done - Opportunity of hearing has to be given to every assessee by the AC or C while considering the proposal for sanctioning/issuing of notice for reassessment under the proviso to Sub-section (2) of Section 21 of the Act and reasons are also to be recorded while granting sancti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Central Sales Tax Act. The Contention of the petitioner is that Additional Commissioner, Grade-I, Trade Tax, Kanpur Zone, Kanpur had issued a notice under section 21(2) of the U.P. Trade Tax Act 1948 on 11.11.2005, the petitioner filed a reply of the aforesaid notice on 23.11.2005 (Annexure No.4 to the writ petition), the petitioner had replied the notice dated 11.11.2005 in detail, but while passing the impugned order dated 17.12.2005 the Additional Commissioner, Grade-I, Trade Tax, Kanpur Zone, Kanpur had not considered the grievance of the petitioner and by means of an order dated 17.12.2005 had granted the approval only in the interest of revenue. Sri S.D. Singh, learned Senior Advocate for the petitioner submits that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Section 21 of the Act do not provide for any opportunity of hearing to the dealer by the Additional Commissioner/Commissioner before he grants approval to the proposal if any made by the assessing authority for making the reassessment. 45. In the case of Rajesh Kumar and Ors. v. Dy. CIT and Ors. the Apex Court was Considering the provisions of Section 142(2-A) of the Act which Empowers the Assessing Officer after obtaining the approval of the of the Commissioner to direct for special audit of the books of account of the assessee. The provisions of Section 142(2-A) of the Act did not provide for giving of any opportunity of hearing by the Commissioner to the assessee. The Apex Court has held as follows: 53. The factors enumerated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f would not mean that the court would not insist on complying with the fundamental principles of law. If the principles of natural justice are to be excluded, the Parliament could have said so expressly. The hearing given is only in terms of Section 142(3) which is limited only to the findings of the special auditor. The order of assessment would be based upon the findings of the special auditor subject of course to acceptance by the assessing officer. Even at that stage the assessee cannot put forward a case that power under Section 142(2A) of the Act had wrongly been exercised and he has unnecessarily been saddled with a heavy expenditure. An appeal against the order of assessment, as noticed hereinbefore, would not serve any real purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the view taken by this Court in the aforesaid cases and are, therefore, of the considered opinion that opportunity of hearing has to be given to every assessee by the Additional Commissioner or the Commissioner while considering the proposal for sanctioning/issuing of notice for reassessment under the proviso to Sub-section (2) of Section 21 of the Act and reasons are also to be recorded while granting sanction. As the Additional Commissioner has not given any reasons for granting permission/sanction to proposal to reopen the assessment for the assessment year in question and to make the reassessment under the extended period of limitation, the order dated 1^st June, 2001 cannot be sustained and is therefore set aside. Consequently all pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
