TMI Blog2016 (12) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... ke before the High Court and the Tribunal, it has been decided to form the GR Cell who after considering the material on record including the submissions made on behalf of the dealer would prepare the case in consultation with the Authorities forming part of the GR Cell and the same are required to be produced before the Assessing Officer / Adjudicating Officer and the Circulars further provide that thereafter the Assessing Officer / Adjudicating Officer is required to pass a speaking and reasoned order after considering the submissions made on behalf of the Government as well as made on behalf of the Dealer - From the procedure which is provided under the Circulars, it cannot be said that there is any external interference in exercise of quasi judicial functions by the Assessing Officers / Adjudicating Officers - the challenge to the impugned Circulars dated 30.07.2016 fails. Requirement of sending the case papers to the respondent No.1 for preaudit - Held that: - the same is liable to be quashed and set aside in light of the decision of this Court in the case of M/s. Tanuj Agency Pvt. Ltd. [2016 (6) TMI 727 - GUJARAT HIGH COURT], where it was held that the procedure adopted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that stainless steel wires would fall under Residuary Entry. [3.2] Being aggrieved and dissatisfied with the order of the Assessing Officer, the petitioner No.1 preferred an appeal under Section 73 of the Act before the first Appellate Authority respondent No.2 herein. The first Appellate Authority granted the stay which came to be extended from time to time. It is the case on behalf of the petitioners that after considering the legal position, the appeal was required to be allowed. However, on allowing the appeal as the refund order was likely to exceed ₹ 50 lakhs and therefore, the first Appellate Authority under the directions of the respondent No.1 intended to send the file of the appeal as well as the draft order to the respondent No.1 herein for his approval. That by communication dated 18.07.2016, petitioner No.1 through its Advocate brought to the notice of the respondent No.2 that such approval from the respondent No.1 would be in complete violation of the binding decision of this Court in the case of M/s. Tanuj Agency Pvt. Ltd. rendered in Special Civil Application No.4984/2016 . It is the case on behalf of the petitioners that despite the above the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra). [5.1] Now, so far as the challenge to Circulars dated 30.07.2016 (Annexures J K) issued by the respondent No.1 are concerned, Shri Bhatt, learned advocate appearing on behalf of the petitioners has vehemently submitted that such a circular issued by the Commissioner is wholly without authority under the law. It is submitted that no such powers are vested with the Commissioner under the Act to issue such circulars and the instructions. It is submitted that the Act enlists various provisions with regard to implementation of the Act. It is submitted that impugned circulars failed to indicate the basis of the provision whereby the Commissioner has derived the power to issue the impugned circulars. It is submitted that in absence of any specific powers authorizing the Commissioner to issue such circulars, impugned circulars are without jurisdiction and therefore, liable to be struck down. [5.2] It is vehemently submitted by Shri Bhatt, learned advocate appearing on behalf of the petitioners that a bare perusal of the entire Act clearly indicates that there is no provision incorporated in the Act which envisages any powers on the Commissioner to issue circulars more partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charging of quasi judicial function by their subordinates. [5.5] It is further submitted by Shri Bhatt, learned advocate appearing on behalf of the petitioners that it is evident that the circular provides that before the Assessing Officer Appellate Authority the representation which shall be made will be that of the highest officers under the Act to whom these officers are mere subordinates. It is submitted that under the garb of representation what is sought to be done is interfering and overpowering the quasi judicial function of superior authorities, as any submissions given from a official cannot be ignored by a subordinate officer in a government setup. It is submitted that this is nothing but dictate in the form of their submissions which obviously a subordinate officers under the hierarchy of statute would be bound to obey. It is submitted that therefore such circulars can be said to be influence by the superior officers in the quasi judicial functioning of the subordinate officers. In support of his above submissions, Shri Bhatt, learned advocate appearing on behalf of the petitioners has heavily relied upon the decision of the Hon ble Supreme Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt and the Tribunal the government s stand is not represented by any government representatives before the Assessing Officer / Adjudicating Authority and therefore, there is a possibility of not placing the correct case of the government before the Assessing / Adjudicating Authorities and therefore, it has been decided to constitute Government Representatives which shall consist of the representatives mentioned in the circulars, who would after considering the case and the material on record prepare the representation to be made before the Adjudicating / Assessing Officer, who thereafter is required to pass a detailed and speaking order. [6.2] It is submitted that circulars further provide that the postassessment, the order that may be passed by the Adjudicating / Assessing Officer will be scrutinized and considered by GR Cell / representatives of the GR Cell who shall prepare the points which are held to be against the government and the points be placed before the appropriate higher authority so as to enable the higher authority to take a decision whether to file a review application and/or to take the matter under suo moto revision or not? It is submitted that as such the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er providing some internal mechanism so as to protect the interest of the Revenue. [6.5] Shri Trivedi, learned Advocate General has emphatically submitted that the State Government believes in independence of the quasi judicial authorities and therefore, as such they are free to pass any order in accordance with law and on the basis of the material on record independently, however they are told to pass speaking and reasoned order on the basis of the material on record and after considering the government representation as well as representation made on behalf of the concerned dealer. [6.6] Shri Trivedi, learned Advocate General has relied upon the decision of the Hon ble Supreme Court in the case of Sant Ram Sharma vs. State of Rajasthan reported in AIR 1967 SC 1910 (Para 7) . Making above submissions it is requested to dismiss the present petition so far as challenge to the impugned Circulars dated 30.07.2016 (Annexures J K) are concerned. [7.0] Heard learned advocates appearing for respective parties at length. At the outset it is required to be noted that in the present petition the petitioners have challenged the impugned action of the respondent No.2 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Assessing Officer / Adjudicating Officer and the Circulars further provide that thereafter the Assessing Officer / Adjudicating Officer is required to pass a speaking and reasoned order after considering the submissions made on behalf of the Government as well as made on behalf of the Dealer. From the procedure which is provided under the Circulars, it cannot be said that there is any external interference in exercise of quasi judicial functions by the Assessing Officers / Adjudicating Officers. The Circulars do not say that an Assessing Officer is required to pass the order in a particular manner and/or fashion. What the Circulars provided is that the Assessing Officer / Adjudicating Officer is required to pass a speaking and a reasoned order after considering the submissions / government representations as well as the representations made on behalf of the dealer. For such an interdepartmental Circular there need not be any specific power conferred under the Statute. The Commissioner of Commercial Tax being the Head of the Department is bound to protect the interest of the Revenue and more particularly in the proceedings arising out of the Act. The procedure which is pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided in the impugned Circulars, it appears that after the Assessment Orders are passed, thereafter the GR Cell shall consider the orders and consider the same visavis the material on record and thereafter prepare the grounds which shall be placed before the Appropriate Authority who can taken appropriate decision whether to file a review and/or to initiate revisional proceedings and/or to prefer the appeal against the Assessment Order or not. Therefore, the aforesaid procedure is provided only for the aforesaid limited purpose. The postaudit word may not have been properly used. However, on fair reading of the entire procedure required to be followed as mentioned in the impugned Circulars, postAssessment Orders, the same is meant only for the aforesaid purpose only. Therefore, the said Circulars cannot be said to be influencing the Appellate Authority and/or taking away the independence of the Appellate Authority and/or the Revisional Authority. The gist of the entire Circulars can be said to prepare and make the proper, fair and effective government representations to protect the interest of the Revenue as well as the public exchequer. By providing such procedure none of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, it cannot be said that there is any extraneous guidance to the quasi judicial authorities. [7.7] Now, so far as the reliance placed upon the decision of the Hon ble Supreme Court in the case of Orient Paper Mills Ltd. (Supra) is concerned, on considering the said decision we are of the opinion that the said decision shall not be applicable to the facts of the case on hand. In the case before the Hon ble Supreme court the assessment was made by the Assessing Officer on the instructions from the Collector before whom the appeal was preferred and to that the Hon ble Supreme Court observed that the same is not permissible. Now, the observations made by the Hon ble Supreme Court in the said decision that the Assessing Authorities exercise quasi judicial functions and duty is cast on them to act in a judicious and independent manner and that if their judgment is controlled by the directions given by the Collector it cannot be said to be their independent judgment in any sense of the word, there cannot be any two views on the same. [7.8] Similarly, even the decision of the Hon ble Supreme Court in the case of Greenworld Corporation, Parwanoo (Supra) also shall not be applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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