TMI Blog2014 (5) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... composite notice dated 20.11.2010 were adverted hence, the mistake was there and it was apparent on the record - Thus, no error was committed by DC in rectifying the mistake. Supply of SIB report – Violation of Natural Justice – Held that:- As the materials pertaining to inquiry and investigation of Forms-C and the result of inquiry were on the record of file, to which the petitioner was made aware, he cannot complain the violation of principle of natural justice - Although there is nothing on record to show as to whether any specific order has been passed on the said application, however, in view of the findings that the assessee was made aware of materials on record, the said complaint was substantially dealt with – Relying upon City Corner Vs. Personal Assistant to Collector and Addl. District Magistrate , Nellore, [1975 (9) TMI 169 - SUPREME COURT] - It is not always necessary that documents asked for to be furnished, provided substance of the document is furnished and summary is not misleading -Further in the counter affidavit filed by the State in writ petition Nos. 635(Tax) of 2004 and 636 (Tax) of 2004, all necessary correspondences received from tax authority of State a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it petition Nos. 635 (Tax) of 2004 and 636 (Tax) of 2004, challenging the orders dated 23.4.2004 and 27.4.2004 in which interim order was passed by this Court. Ultimately vide judgment and order dated 15.7.2010 both the writ petitions were dismissed. Subsequent to the dismissal of the writ petition, a composite notice dated 20.11.2010 was issued for re-assessment both under U.P. and Central. The petitioner again filed writ petitions being Writ Tax No. 192 of 2011 and Writ Tax No. 193 of 2011 seeking a direction to supply the relevant documents to the petitioners as prayed for by means of an application. The said writ petitions were disposed of by order dated 9.2.2011. Notices were issued again on 13.1.2011 asking the petitioner for compliance. The petitioner filed detailed objections on 13.1.2011. The Deputy Commissioner passed order dated 24.2.2011 referring to the permission dated 27.4.2004 of the Additional Commissioner for re-assessment, by which order notices issued for re-assessment for the year 1999-2000 was withdrawn. After the order dated 24.2.2011, another notice under sections 22/21 of 1948 Act and Section 9(2) of the Central Sales Tax Act was issued asking the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the submissions of learned Counsel for the petitioner, contended that there is no error in the order dated 25.11.2011 rectifying the mistake in the order dated 24.2.2011 and making re-assessment since by order dated 24.2.2011 re-assessment notice with regard to re-assessment year 1999-2000 for Central was also wrongly withdrawn, whereas the said order ought to have confined only to re-assessment notice for State. He submits that in the order dated 24.2.2011 only consideration was made of the permission order of the Additional Commissioner dated 27.4.2004, which related to the the re-assessment for State only and by mistake notices of re-assessment for both Central and State were withdrawn. He further submitted that the petitioner was made well aware of the grounds on which re-assessment notice was given. Detailed facts as to why forms -C submitted by the petitioner could not be verified have been mentioned in the notice. The forms-C on which the petitioner claims inter-state sales were found either fictitious, not issued to the respective dealers or not issued by the respective department hence, the benefit which was given on said forms, was not admissible and tax escaped assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 21 of the Act. The initiation of proceeding under section 21 are accordingly upheld. On the facts and circumstances of the case, we are not incline to interfere in the matter. However the petitioner is directed to participate in the re-assessment proceedings and submit its reply before the assessing authority. It is expected from the assessing authority to consider the submissions of the petitioner on merits and in accordance with law while passing orders on re-assessment proceedings. Both the writ petitions are, accordingly, dismissed. Interim orders are discharged. Subsequent to the dismissal of the aforesaid writ petitions, a composite notice dated 20.11.2010 was issued by the Deputy Commissioner for re-assessment of 1999-2000 provincial/ Central. With regard to re-assessment Central, specific grounds were given including the ground that forms-C as claimed by the petitioner were fictitious and unverified. The Deputy Commissioner passed the order dated 24.2.2011 by which the notice dated 20.11.2010 was withdrawn. A photocopy of the order dated 24.2.2011 has been filed as Annexure-9 to the writ petition. A perusal of the order dated 24.2.2011 indicates that the said or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such notice had been served in the first instance. From the facts as noticed above, it is clear that two separate orders were passed for re-assessment for Central and Provincial i.e. 23.4.2004 and 27.4.2004 which were challenged by the petitioner in this Court and when writ petitions were decided, a composite notice was issued on 20.11.2010 both for Central and State. The composite notice was replied and thereafter it was withdrawn on 24.2.2011. The contents of the letter dated 24.2.2011 clearly indicate that what was considered in the order was the order dated 27.4.2004 regarding provincial but notice as a whole was withdrawn. There being no consideration of the facts as mentioned in the order of Additional Commissioner dated 23.4.2004 as well as the specific facts and grounds as noted in the composite notice pertaining to re-assessment of central, the withdrawal of the notice in whole was clearly a mistake. Had in the order dated 24.2.2011 after consideration of the order dated 23.4.2004 and papers pertaining to the assessment of Central were given and thereafter notice was withdrawn, the result would have been a different. There being mistake on the part of the Deputy Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blished by a long drawn process of reasoning or where two opinions are possible. Decision on debatable point of law cannot be treated as mistake apparent from the record. Other judgements of this Court relied by learned Counsel for the petitioner are reported in 2005 NTN (Vol. 26)-230 Commissioner of Trade Tax, U.P. Lucknow Vs. M/s Dhampur Sugar Mills Ltd. Dhampur , 2005 U.P.T.C-180 Commissioner of Sales Tax Vs. M/s. Abdul Gani Banney Miyan, Chandpur, 1988 U.P.T.C.-428 M/s. Matwala Ram Kishan Chand Vs. Commissioner of Sales Tax, U.P., 1997 (Vol.26) STR 453 M/s. Shree Bhagwati Flour Mills, Mainpuri Vs. Commissioner of Sales Tax and [1971] 082 ITR 0050-Balram (T.S.), ITO Vs. Volkart Brothers, where the same proposition has been laid down as laid down in Deva Metal Powders (supra). From the proposition as laid down in the above cases, it is clear that to attract the application of section 22, mistake must be apparent on the record and obvious mistake. Coming to the facts of the present case, it is clear that mistake existed since the Deputy Commissioner withdrew the notice for re-assessment both for Central and State by order dated 24.2.2011, whereas in the order dated 24.2.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re claimed by the petitioner were not available for the benefit. Sri Keshwarwani also referred to various correspondences received from outside the State which were filed along with earlier counter affidavits. The petitioner was thus, substantially made aware of all correspondences and allegations on the basis of which re-assessment proceedings were initiated. Learned Counsel for the petitioner, submitted that S.I.B. Report has not been supplied to the petitioner. Replying which Sri Kesharwani submits that SIB report received from the Tax Department was nothing but compilation of correspondences, actual informations and verifications received from outside the State to which the petitioner was made well aware. A perusal of the impugned order also indicates that a finding has been recorded by the Deputy Commissioner that all materials pertaining to inquiry of forms- C relating to the petitioner are available on record to which information the assessee was made aware by means of show cause notice as well as during hearing, the said finding has been specifically recorded in the impugned order. The aforesaid finding recorded in the order dated 25.11.2011 has not been specifically cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supply of the said report of the DC SIB. The Division Bench in the said case noticed that assessing officer declined to supply copy of the report on the ground of confidentiality particularly when inference drawn from the said report has already been noticed in the show cause notice, and held that the decision of the Assessing Authority cannot be sustained Following was laid down by the Division Bench in paragraphs 6 and 7: 6. The Assessing Authority has declined to supply copy of the report by his letter dated 15.12.2007 on the ground that the same is confidential and, therefore, need not be furnished to the petitioner particularly when inference drawn from the said report has already been noticed in the show cause notice. In our view the aforesaid decision of the Assessing Authority cannot be sustained. There does not appear any logical reason to hold the report of the DC SIB to be confidential and accordingly for not supplying the same, if it is proposed by the department to rely upon that report in the provisional assessment. 7.It is mentioned in Annexure-5 to the writ petition that the ''substance of the adverse inferences' has been communicated to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that in making it the district Magistrate had failed to observe the principles of natural justice. The order that the District Magistrate passed is a quasi- judicial order and therefore the appellant is right in contending that the principles of natural justice should have been followed before that order was passed. It is now well established by decisions of this Court that such is the requirement of law even where the statute in question itself does not so provide. It is also well established that the principles of natural justice do not necessarily conform to a fixed formula, nor is it a procrustean bed into which all proceedings must be fitted. The principles of natural justice will always depend upon the facts of each case. The learned Judges of the High Court examined the various documents the copies of which had been asked for by the appellant and came to the conclusion that the show cause notice issued to him contained a summary of all those documents which was sufficient to enable the appellant to make his representation. We cannot say that this conclusion is wrong. It is not always necessary that the documents asked for should itself be furnished provided the substance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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