9911796707
TMI Blog2016 (5) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... hese writ petitions under Article 226 of the Constitution of India, the petitioners are praying for quashment of Assessment Order dated 23/07/2015(Annexue-P/1) and Auction notice dated 17/08/2015(Annexure-P/2) on the ground of arbitrariness in making an order by an authority and violation of principle of natural justice. 4. Brief facts of the case are that the petitioners are a Private Limited Company, trading in coal and are registered with the respondent/Department. The petitioners/company were assessed in the Year 2012-2013 and Assessment Order was issued on 28/02/2015. By the aforesaid Assessment Order, the petitioners were directed to pay a sum of Rs. 8,66,98,847/- and Rs. 7,44,14,362/- (in W.P. No.5800/2015 and W.P. No.5801/2015)resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n notice of the property was issued without application of mind and, therefore, deserves to be quashed. He placed reliance on the decision of the Division Bench of this Court in the case of Mahaveerprasad Jain v. Commissioner of Income-Tax, [(1989) 72 STC 27(MP) and submitted that though Section 34 of the VAT Act 2002 does not provide for hearing, but as civil consequence of liability of tax imposed and the respondent No.2 has to determine sufficient cause for absence of the counsel, he has to give a notice of date of hearing and an opportunity of hearing and the petitioners cannot be made to suffer for the negligence of the counsel and his application cannot be dismissed because the counsel failed to appear when the case was posted for hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02/2015 and last opportunity was granted on 15/02/2015 and fixed the case for 28/02/2015. The petitioners despite knowing very well of last opportunity given on 15/02/2015 failed to produce any evidence nor appeared before the Competent Authority and, therefore, an ex-parte order was passed. He submitted that the petitioner is the author of the situation and there is no illegality or arbitrariness in passing the assessment order and prayed for dismissal of both the writ petitions. 9. Order-sheets dated 29/12//2014, 31/12/2014, 15/02/2015 and 28/02/2015 are relevant which reads as under:- 10. Section 34 of the VAT Act, 2002 reads as under:- "34. Power to set aside an ex parte order (1) Where in the proceedings for assessment/reassessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e he gave appearance on behalf of the petitioners as official consultancy before the Assessing Officer and he never disclosed the same nor any authority letter of Shri Radheshaym Carpenter, Senior CA was filed or ever pointed out that he has been engaged or not well on 28/02/2015. The last date for assessment for the year 2012-13 was 31/12/2014, but vide Notification No.2 dated 15/01/2015, an extension was granted upto 28/02/2015, therefore, in the present case, inspite of opportunity granted to the petitioners for adducing the evidence, no one gave appearance on their behalf nor any material was produced to prove otherwise. Thus, the Department was left no other option, but to pass the final assessment order on the last date of limitation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assisting Shri Radheshyam Carpenter, learned Senior CA and he is sick and was advised for bed-rest. 14. In both these writ petitions also, no material has been produced by the petitioners that the assessment order dated 28/02/2015 is contrary to the statutory provisions or principle of law, but looking to the huge liability against the petitioners in the interest of justice, we grant one more opportunity to the petitioners to appear through their counsel before the respondent No.2. Accordingly, the impugned order dated 23/07/2015 by which his application under Section 34 of VAT Act, 2002 has been rejected is set aside, subject to depositing 10% of the amount in question within two weeks from the date of this order and on producing the mate ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
