TMI Blog2015 (1) TMI 1290X X X X Extracts X X X X X X X X Extracts X X X X ..... he assesse Not only orthodox methods of service of notice should have been followed, but, over and above the orthodox methods, the State should have served the notice upon assessee by sending any employee of the State. The State has several vehicles and persons with them. When such a huge liability of tax is imposed or is going to be imposed, the State should have served the notice upon the assessee by sending any responsible employee instead of passing exparte order. As a cumulative effect of the aforesaid facts and reasons, we hereby remand the matter to the Commercial Taxes Officer, Koderma Circle, Koderma to decide afresh the tax liability, if any, of the petitioner. The relaxation of the time limit as mentioned in Subsection 2 of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment year 201011 from which also it is very clear that notice was never served upon the petitioner upon whom liability of tax of approximately ₹ 90 Lakhs is imposed. It is further submitted by learned counsel for the petitioner that had an opportunity been given to the petitioner, the true and correct facts would have been pointed out by the petitioner that there is no sale of the goods as mentioned in the exparte assessment order, but, it is stock transfer of machineries from different branches of the petitioner situated in different States, as stated in paragraph 12 of the writ petition. The contentions of the writ petitioner have been supported by necessary documentary evidences annexed with the memo of this writ petition and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the affidavit by the respondents and, therefore, meanwhile fresh assessment order can be passed by the assessing officer and this order can be passed, if the State Government is ready as on today. 3. We have heard learned Additional Advocate General appearing on behalf of the State, who has submitted that from the documents on record, nothing is coming out that the notice was served upon the petitioner. Nonetheless, there is efficacious alternative remedy available to the petitioner and he can prefer an Appeal under Section 79 of the Act, 2005 or a Revision under Section 80 of the Act, 2005. It is also submitted by learned Additional Advocate General that it is true that if the counter affidavit is to be filed and thereafter the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployee instead of passing exparte order. When there is more liability of amount of tax, more care should have been taken by the State, at least in following the procedure. Always exparte orders have inbuilt difficulties because correct facts along with correct documents are not available with the assessing officer. This Court is not pointing out anything on the merits of the case, but, several arguments have been canvassed by the learned counsel for the petitioner even on the merits of the case that the transaction in question which is assessed improperly is not a sale at all, but, they are stock transfer transaction. There is no change of ownership at all, hence, transaction in question is not falling within the charging section of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the petitioner has no objection. 9. We therefore direct the Commercial Taxes Officer, Koderma Circle, Koderma to pass the assessment order within a period of eight weeks from the service of the copy of the order of this Court. 10. Learned Additional Advocate General submitted that under Subsection 8 of Section 35, there is period of limitation for passing the order of assessment, which is to be read with Subsection 2 of Section 42 of the Act, 2005. The provisions of Subsection 2 of Section 42 of the Act, 2005 is a relaxation of the period of limitation for the assessment order, but, it is applicable whenever any order of assessment is passed in appeal or revision. Looking to the facts and circumstances of the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or revision will take at least four weeks' time to be decided. Hence, looking to the totality of the circumstances, as stated hereinabove that: (a) there is violation of fundamental right of the petitioner; (b) much time will be consumed by this Court if this matter is not taken for its final disposal as on today; and (c) if the petitioner is relegated to approach appellate forum or revisional forum, it will also take at least four weeks' time. We have heard this writ petition for its final disposal, instead of relegating the petitioner to appellate or revisional authority. 11. As a cumulative effect of the aforesaid facts and reasons, we hereby remand the matter to the Commercial Taxes Officer, Koderma Circle, Koder ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
