TMI Blog2013 (11) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... the perusal of the impugned order, it is find that after narration of the facts, the Revisional Authority because of non-production of any material before it by the petitioners reiterated the earlier order only, while as per directions issued by the Revisional Authority the Assessing Authority was under an obligation to meet out all the directions, but it appears that the Assessing Officer impressed with the fact that no evidence was produced before it by the assessee reiterated the earlier order, while it was under an obligation to decide the matter as directed by the Revisional Authority. When the important and vital issues are not considered by the Assessing Officer, the assessment order after remand cannot be sustained under the law - Matter remitted back to Assessing Officer to comply with the remand order - Following decision of M/s Shri Sharda Domestic Fuels Pvt. Ltd. Versus State of M. P. and others [2013 (4) TMI 464 - MADHYA PRADESH HIGH COURT] - Decided in favour of assessee. - W. P. No. 2590 of 2008 (O) - - - Dated:- 18-9-2013 - Krishn Kumar Lahoti And Subhash Kakade Acting CJ,JJ. For the Petitioner : Shri Mukesh Agrawal For the Respondents : Shri Piyush Dh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction note it was found that the petitioner was indulged in trading of coal i.e. purchasing the same from the coal companies and selling the same to various individual customers in the open market only, with a motive to purchase coal under the exemption certificate and was evading the tax. Thereafter, the petitioner's exemption was cancelled and proceedings were initiated against the petitioner. It is submitted by the petitioner that the controversy involved in this case is squarely covered by a Division Bench judgment of this Court in Shri Sharda Domestic Fuels Pvt. Ltd. vs. State of M.P. others [(2013) 23 STJ 275(MP)] and similar directions may be issued in the present case. The aforesaid contention is not opposed by Shri Dharmadhikari, learned Counsel appearing for the State. It is submitted by him that an enquiry has been directed in Sharda Domestic (supra) which may also be conducted in the case of the petitioner also and with the similar directions this matter may also be disposed of finally. In Sharda Domestic Fuels (supra), a Division Bench of this Court considering the similar circumstances has decided the matter and for ready reference, we quote the order which reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Authority recorded a finding that no proper evidence was collected in respect of the sales for the year 1997-98. The report of the task force was non-speaking and without any supporting documentary evidence. After three years of the initial assessment order, if the unit is found closed in physical inspection, then on the basis of this, a finding cannot be recorded that before three years the unit was not functional. If the allegations are that the unit had not used the raw material in the manufacturing of coke briquettes and has sold it in the market for tax evasion, then for that purpose, the documentary evidence could have been collected and an opportunity ought to have been extended to the assessee for explanation, and thereafter a speaking order could have been passed by the Assessing Officer. The findings recorded by the Assessing Officer on the basis of report of task force was not on sound reasoning. (c) In respect of the allegations, the assessee was not extended an opportunity to explain and to prove evidence.During alleged period, Manager DIC, Labour Department, Deputy Collector, Sub-Divisional Officer had inspected the unit and had duly certified that the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 24.5.2000; (ii) the statement of local Sarpanch ;(iii) in respect of verification by the Department that most of the purchaser units were not found in existence; (iv) in respect of non-payment of sale price by cheque or draft. The Assessing Officer had also directed the assessee to file reply on the aforesaid points. It appears that case was listed on 14.03.05, 8.8.05, 30.9.05, 24.10.05 and was adjourned for filing of the reply. On 6.1.06, when none had appeared for the assessee, the matter was closed, and on 12.01.06, the Assessing Officer passed an order reiterating the earlier order and same tax and penalty was again imposed upon the petitioner. 4. Against the Order (Annexure P/8) dated 12.01.06, a revision was preferred by the petitioner, but vide Order (Annexure P/11) dated 19.07.06 the revision was dismissed. These orders are under challenge in this writ petition. 5. Learned counsel appearing for petitioners submit; (i) that remand order (Annexure P/5) was not followed by the Assessing Officer, and even at the second time the Revisional Authority while passing Order (P/11) has not considered the fact that earlier remand order (Annexure P/5) was not complied with; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment orders were passed which were not speaking orders; (vi) That, which transactions were found bogus, the Assessing Officer should specify and obtain an explanation from the assessee and thereafter to decide the matter; (vii) That, the report of CBI was not available on record. The report of CBI could have been treated as a report only, but on the basis of such report, the assessment order could not have been passed. 8. From perusal of the order after the remand (Annexure P/8), it appears that the Assessing Officer on page 5 of the order recorded only one fact that no evidence was produced by the assessee inspite of allowing time to produce the record,and on the basis of this, the Assessing Officer had passed the assessment order reiterating the earlier assessment order. While as per the remand order, the Assessing Officer was required to frame a fresh assessment order after complying the remand order passed by the Revisional Authority, but it appears that mechanically assessment order was passed by the Assessing Officer. The Revisional Authority while deciding the matter by an Order dated 19.07.06 (Annexure P/11) has also not considered that in the earlier remand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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