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TMI Blog2015 (11) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... cation filed by petitioner for rectification in the order dated 26.12.2013 was rejected by the Rajasthan Tax Board. Facts of the case are that Commercial Taxes Officer, Anti-Evasion, Ajmer, (for short, 'the CTO') surveyed the business premises of petitioner company on 06.01.2009. After allowing all kind of discounts, credit notes and schemes, he recommended the matter to Deputy Commissioner (Administration), Ajmer, for composition of net turnover. The Assistant Commercial Taxes Officer, Anti-Evasion-III, Ajmer, (for short, 'the ACTO') prepared ex-parte audit report on 30.03.2011. He detected the case under Section 61 of the Act of 2003 and recommended the case to Deputy Commissioner (Administration), Ajmer on 05.10.2011 for transfer of file under Section 37 (4) of the Act of 2003 under prosecutor judge theory. It was thereupon that the Deputy Commissioner (Administration), Ajmer, transferred he file to Commercial Taxes Officer, Anti Evasion, Ajmer, for final disposal. Commercial Taxes Officer, Anti Evasion, Ajmer, in compliance of the aforesaid order, issued notice on 05.10.2011 under Section 25(1) read with Sections 26(1), 55 and 61 of the Act of 2003. The Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 28.08.2012, rejected the transfer application filed by petitioner company. The CTO again issued notice to petitioner company on 07.09.2012 after making enquiry from Income Tax Department and State Bank of India, pointing out various discrepancies in figures submitted to the Department. The Rajasthan Tax Board, vide order dated 11.09.2012, rejected the said application filed by petitioner company stating that it had no power to stay the proceedings. The assessing authority, by order dated 17.09.2012, rectified its earlier order dated 29.02.2012 passed under Section 33 of the Act of 2003 reducing the amount of demand of Rs. 61,96,830/-. Being aggrieved thereby, petitioner company preferred a writ petition under Article 226 of the Constitution of India before this court. This court, vide order dated 25.10.2012, stayed proceedings in the matter and directed the Rajasthan Tax Board to hear and decide the appeal afresh. It was thereafter that the Rajasthan Tax Board remanded the matter vide order dated 29.12.2013 to the CTO, AE-Ajmer, to decide the matter afresh. The Rajasthan Tax Board, by order dated 07.03.2014, rejected the rectification application. Petitioner company rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Administration) and no statement has been recorded prior to issuance of notice dated 05.10.2011. After issuance of notice by the CTO, AEAjmer, the ACTO, Ward-I, AE-Ajmer, surveyed the business premise of the petitioner company on 09.12.2011. It was on the basis of the report submitted by them, , the CTO, AE-Ajmer, again issued notice on 30.12.2011 to the petitioner company under Section 25(1) read with Sections 26(1), 55 and 61 of the Act of 2003. When the department admits that the survey took place on 25.07.2011, it cannot contend that jurisdiction occurs from 06.01.2009. This is nothing but an afterthought and onus lies on the department. It is argued that second time survey was conducted by ACTO in presence of the CTO himself and therefore he was biased. Reliance in this connection has been placed on the judgment of the Bombay High Court reported in 1988 (33) ELT 48 (Bom). It is argued that ex-parte audit report was submitted by ACTO, AE-Ajmer, without obtaining any clarification from the petitioner company and M/s Maruti Suzuki India Limited, Gurgaon. No notice was issued to the petitioner nor opportunity of hearing was being provided to him. Thereafter the matter was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Per contra, Shri R.B. Mathur, learned counsel for the respondent department, has opposed the writ petitions and argued that the order passed by the CTO, Deputy Commissioner (Appeals) and the Rajasthan Tax Board are perfectly just and legal and do not suffer from any illegality. No question of law muchless any substantial question is involved in the mater. The Rajasthan Tax Board has categorically held that the revision petition was not maintainable. The appeal was preferred before the Tax Board by the petitioner assessee itself dissatisfied with the order passed by the Deputy Commissioner (Appeals), who vide order dated 25.07.2012 passed in the first appeal of the petitioner while setting aside the order of assessment dated 22.02.2012 remanded the matter. It is contended that though the matter was remanded to the same CTO who originally passed the assessment order but the matter has been transferred long ago and now the matter shall be dealt with by another CTO and now the entire order would be passed by another CTO and therefore there is no question of any biasness. At the outset, it may be observed that the order rejecting the rectification application cannot be faulted beca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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