TMI Blog1984 (6) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and it is only item 45 of the First Schedule and item 3(ii)(k) of the Second Schedule that will apply to the instant case. It was also mentioned therein that if there is any doubt in the matter a reference may be made to the Government for clarification. By exhibit P3 order dated 24th May, 1982 the respondent assessed the said disputed turnover at 8 per cent as proposed by him. In exhibit P3 order, it was found that under total tax due, there is an excess payment of Rs. 14,710.69 This was adjusted against additional sales tax assessment (tax due on declared goods) and balance tax payable was arrived at Rs. 26,852.57. Exhibit P3 also specified that under surcharge a sum of Rs. 7,920.26 was available as surplus and it was adjusted to 1983-84. It may be mentioned that exhibit P3 is for the assessment year 1980-81 (accounting period ending by 31st March, 1981) and the order is dated 24th May, 1982 and the adjustment of excess surcharge paid was made for the year to begin from 1st April, 1983. Exhibit P4 is the consequential notice of demand for the balance tax due as per exhibit P3. In this O.P. the petitioner prays for the issue of an appropriate writ to quash exhibit P3 order and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd so this Court should not exercise the jurisdiction vested in it under article 226 of the Constitution of India. The objection raised by the petitioner in exhibit P2 was adverted to and rejected in exhibit P3 order. It is unnecessary to give reasons therefor. Failure to do so is not illegal or otherwise infirm. The question whether the disputed turnover in the instant case falls within one entry or the other, about which the assessee and the Revenue took different stand, can be decided only after ascertainment of facts and circumstances and the decision on this issue is a question of fact. Normally, this Court will not interfere in such matters in proceedings under article 226 of the Constitution. On that ground, exhibit P3 is not liable to be challenged. The adjustment of excess surcharge of this year, for the year 1983-84 was made under a mistake, as stated in the additional counter-affidavit dated 16th June, 1984. There was no wilful intention to cause any harassment to the assessee (petitioner) in this regard. 5.. At the outset, I should state that I do not propose to go into the merits of the rival contentions raised by the parties as to whether the disputed turnover will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to be incorrect or incomplete, the assessing authority shall, after making such enquiry as it may consider necessary and after taking into account all relevant materials gathered by it, assess the dealer to the best of its judgment: Provided that before taking action under this sub-section the dealer shall be given a reasonable opportunity of being heard and where a return has been submitted, to prove the correctness or completeness of such return." In Hevea Crump Rubber (P.) Ltd. v. Superintendent of Central Excise 1983 KLT 679; [1984] 3 ECC 197, I said: "A speaking order is a pre-requisite before saddling the petitioner with the liability to pay excise duty. The respondents have merely asserted that the block or crump rubber produced in the petitioners' factory is liable for excise duty under tariff item No. 68 of the Central Excise Tariff. This is not sufficient. It is for the Revenue to allege and substantiate at least prima facie, as to why a particular item is taxable under a particular tariff entry. The initial burden is on the Revenue to substantiate the assertion.........The assessee is entitled to know and should be informed, the basis on which the Revenue proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a quasi-judicial function, it must record its reasons in support of the order it makes ............The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law." In Ibrahim Kunju v. State AIR 1970 Ker 65, after an exhaustive review of case law, Krishna Iyer, J. (as he then was), held at page 67: "Opportunity (to explain) should be real and not ritualistic, effective and not illusory and must be followed by a fair consideration of the explanation offered and the materials available, culminating in an order which discloses reasons for the decision sufficient to show that the mind of the authority has been applied relevantly and rationally and without reliance on facts not furnished to the affected party The question merely is, in all conscience have you been fair in dealing with that man? If you have been arbitrary, absent-minded, unreasonable or unspeaking, you cannot deny that there has been no administrative fair pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mind at all to exhibit P2 objections. The objections were rejected or disposed of in an arbitrary or mechanical fashion. Exhibit P3 is not a speaking order. There was only a pretence of adverting to the objections raised in exhibit P2. The respondent has failed to act "fairly" in the matter. In view of the principles laid down in the decisions referred to above, I am of opinion that exhibit P3 order has been passed arbitrarily, mechanically and in violation of the principles of natural justice. It is illegal and void. I hereby declare it so. 8.. For another and different reason also, exhibit P3 order is totally without jurisdiction. There was excess amount under surcharge in the sum of Rs. 7,920.26. The assessment was for the year 1980-81 (vide year ending 31st March, 1981) and the order was passed on 24th May, 1982. The above excess amount was adjusted for the year 1983-84, a period yet to commence. At the time of exhibit P3 order, it is anybody's guess whether the petitioner will carry on "business" at all in the subsequent year or that the petitioner or the transactions effected by him, will be exigible to sales tax. Even without any further notice or consent from the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order, it is a matter which requires investigation as to how in the final typed order, this adjustment was inserted or appeared as is seen at pages 187 and 191 of the files. I also enquired as to whether this "mistake" was noted by the Deputy Commissioner of Sales Tax (Zone), Ernakulam, to whom a copy is seen marked as seen at pages 187 and 191 of the files. Mr. Karunakara Panicker, Deputy Commissioner of Sales Tax, who appeared in Court, to render assistance in the matter, categorically submitted that the copy of the order is not seen received by the Deputy Commissioner of Sales Tax (Zone), Ernakulam, as mentioned at pages 187 and 191 of the files in spite of detailed verification. If the copy of the assessment order was received by the Deputy Commissioner of Sales Tax (Zone), at least, he would have been alerted about the patent unauthorised adjustment made by the assessing authority, and would have invoked section 35 of the Act to set right the unauthorised adjustment. Indeed, I should say, if the Deputy Commissioner of Sales Tax (Zone) came to know or was appraised of the matter, it was his duty to exercise the suo motu power of revision vested in him under section 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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