TMI Blog2009 (9) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of assessment year 2000-01. The principal ground of challenge is that the impugned order has been passed beyond the period of limitation prescribed under section 11(3) of the Punjab General Sales Tax Act, 1948 (for brevity, the Act ). Brief facts of the case are that the petitioner is a sugar manufacturing unit and is registered under the provisions of the Act. The petitioner-dealer filed returns of tax under the Act claiming sale of sugar as tax-free. On the purchase of sugarcane no tax was paid as the dealer was claiming that on purchase of sugarcane no tax is leviable under the Act. Under section 11(3) of the Act, the assessment of the dealer can be framed within three years from the last day prescribed for filing of the returns. In the instant case the last date for filing of return in respect of the assessment year 2000-01 was April 30, 2001 and therefore the assessment was required to be framed on or before April 30, 2004. In the case of the petitioner the Assessing Authority, Hoshiarpur was the appropriate authority under section 2(a) of the Act to frame the assessment but the case of the petitioner was transferred by respondent No. 3 to the file of Assista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner for various assessment years including the assessment years 1999-2000 and 2000-01 in exercise of powers under rule 39C of the Punjab General Sales Tax Rules, 1949 (for brevity, the Rules ). The petitioner had agreed to the transfer of cases as no objection was ever raised nor he demanded any copy of the order from the Commissioner when these assessment files were transferred from Hoshiarpur to Patiala. For some administrative reasons, the Assistant Excise and Taxation Commissioner, Patiala considered it proper to transfer the assessment file of the petitioner to the file of the Assistant Excise and Taxation Commissioner, Kapurthala on March 18, 2003 who issued notice in form ST XIV on September 1, 2003 for framing assessment in respect of the year 2000-01. The petitioner is stated to have not raised objection to the transfer of the case from Patiala to Kapurthala. Some objections were filed before the Assistant Excise and Taxation Commissioner, Jalandhar. The matter was pending for final assessment when once again the Excise and Taxation Commissioner transferred the case of the petitioner to the Assistant Excise and Taxation Commissioner, Jalandhar. It is claimed that before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice in many situations when the statute is silent on this point. The approach of this court in this regard is that omission to impose the hearing requirement in the statute under which the impugned action is being taken does not exclude hearing it may be implied from the nature of the power particularly when the right of a party is affected adversely. The justification for reading such a requirement is that the court merely supplies omission of the Legislature (vide Mohinder Singh Gill v. Chief Election Commr. [1978] 1 SCC 405; AIR 1978 SC 851) and except in case of direct legislative negation or implied exclusion (vide S.L.Kapoor v. Jagmohan [1980] 4 SCC 379; AIR 1981 SC 136). (emphasis Here italicised. supplied) The same principle has been echoed in the observations made by the honourable Supreme Court in para 106 of the judgment rendered in the case of Swadeshi Cotton Mills v. Union of India [1981] 1 SCC 664. 106. The principles of natural justice have taken deep root in the judicial conscience of our people, nurtured by Dr. Bina Pani [1967] 2 SCR 625; AIR 1967 1269, Kraipak [1969] 2 SCC 262; [1970] 1 SCR 457, Mohinder Singh Gill [1978] 1 SCC 405; AIR 1978 SC 851, Mrs. Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e discussion is that unless the law expressly or by necessary implication excludes the application of the rule of natural justice, courts will read the said requirement in enactments that are silent and insist on its application even in cases of administrative action having civil consequences. . . When we apply the aforesaid principles to the facts of the present case and examine the provisions of section 11(10) it becomes evident that there is no prohibition incorporated by the legislation to follow the principles of natural justice. Even otherwise there is no legislative intendment either in the preceding or in the succeeding provisions to imply any such prohibition to comply with the principles of natural justice. Therefore, it follows that the principles of natural justice are inherent and have to be read in subsection (10) of section 11 of the Act expressly required the Commissioner cognizance in writing for extending the period of three years provided by section 11(3) for passing the order of assessment. As already observed in the preceding paras, the process of recording reason cannot be a unilateral act of the Commissioner. The association of the assessee to reach the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall not render necessary the re-issue of any notice already issued by the Assessing Authority from whom the case is transferred. A perusal of the aforesaid provision shows that wherever opportunity of hearing could possibly be given it should be afforded and the Commissioner could transfer a case from one Assessing Authority to the other after recording reasons. The facts of the present case do not disclose any such reasons nor any argument to that effect has been advanced by the learned State counsel. Therefore, on that count also the order of transfer of case belonging to the petitioner could not be justified. From the aforesaid discussion, no doubt is left that the order dated April 16, 2004 purported to have been passed under section 11(10) of the Act and rule 39C of the Rules flagrantly violates the principles of natural justice. Such an order cannot be regarded an order in the absence of its communication to the petitioner. Therefore, the respondent cannot take any support from such an order and the impugned order dated March 31, 2005 (P9) is set aside as it is beyond the period of three years prescribed by section 11(3) of the PGST Act. The writ petition is allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
