TMI Blog2023 (3) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing to the petitioner. Excepting for the final notice dated 22.11.2019 issued by the respondent(s) to the petitioner which discloses that the petitioner will have to furnish correct details of the purchases made by the petitioner and also discloses that in case, the purchases were made by the petitioner from a registered dealer, the levy of tax will be at the rate of 5% and in case the purchases were made from an unregistered dealer, the levy of tax will be at the rate of 14.5%, the actual figures based on the best judgment assessment of the respondent which is proposed to be made on the petitioner has not been disclosed - The learned counsel for the petitioner would categorically contend that no personal hearing was afforded to the petitioner in the impugned Assessment Orders. Since in the impugned Assessment Orders, it is not seen as to whether personal hearing was afforded to the petitioner or not, the statement of the petitioner that no personal hearing was afforded to them in the impugned assessment proceedings has to be believed. In the instant case, admittedly as seen from the impugned Assessment Orders, the proposal notices sent to the petitioner on different dates w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the petitioner in the notices dated 02.05.2017, 05.02.2019, 19.11.2019, 22.11.2019 and 04.02.2020, the respondent(s) has proposed to levy tax at the rate of 5% on the respective taxable turnover, but in the impugned Assessment Orders, dated 11.12.2019, the respondent(s) has levied the tax on the respective enhanced turnover without granting an opportunity of hearing to the petitioner. The table showing the details of respective Assessment year, Tax proposal notice amount, tax enhanced amount with rate, penalty proposal notice as well as enhanced penalty are show hereunder : Sl. No. Asst. year Tax proposal in the notices and Penalty Proposal in the notices dated 02.05.2017, 0502.2019 19.11.2019 (in Rs.) Tax enhanced in the impugned asst. order dated 11.12.2019 (in Rs.) Penalty enhanced in the impugned asst. order dated 11.12.2019 (in Rs.) 1. 2012-13 1,22,96,439 @ 5% + 9,22,0233 1,31,69,479 (6,13,809 @ 5% + 1,25,55,670 14.5%) 27,79,893 2. 2013-14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o makes it clear that if the Assessment Order goes beyond the show cause notice, the said Assessment Order is bad in law. The aforesaid principle was also laid down in the judgment of the Hon'ble Supreme Court in the case of the Commissioner of Customs, Mumbai vs. M/s.Toyo Engineering India Ltd. , dated 31.08.2006. in Appeal Civil No.2532 of 2001. The said decision was also relied upon by the learned counsel for the petitioner. d) A Division Bench Judgment of the Madras High Court in the case of CCL Products (India) Ltd. and another vs. Customs, Excise and Service Tax Appellate Tribunal and another, dated 07.11.2014 in C.M.A. No.2379 of 2006 , wherein also a similar view was taken. 5. Per contra, the learned Government Advocate appearing for the respondent(s) would refer to the final notice issued by the respondent(s) on 22.11.2019 to the petitioner requesting the petitioner to give the particulars of the works contract performed by them. The respondent(s) have intimated the petitioner in the said communication that the tax payable by the petitioner in case, the purchases were made from a registered dealer is 5% and if it was made from an unregistered dealer, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on the best judgment assessment of the respondent which is proposed to be made on the petitioner has not been disclosed. Only if such a disclosure was made in the notices, dated 02.05.2017, 05.02.2019, 19.11.2019, 22.11.2019 and 04.02.2020 issued by the respondent(s), the petitioner will be in a position to respond to the same and state his objections. Having not done so in the aforesaid notice, the respondent(s) cannot now contend that opportunity was granted to the petitioner to raise his objections with regard to the levy of tax at the rate of 5% and for other purchases at the rate of 14.5% respectively. According to the respondent(s) only based on best judgment assessment, they have imposed tax under the impugned Assessment Order but before coming to the conclusion with regard to the tax liability of the petitioner, the respondent(s) has not chosen to intimate the petitioner their proposal with regard to the levy of tax which culminated in the impugned Assessment Orders. 9. Further, as seen from the impugned Assessment orders, even though the learned Government Advocate appearing for the respondent(s) would submit that personal hearing was afforded to the petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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