TMI Blog2018 (7) TMI 1664X X X X Extracts X X X X X X X X Extracts X X X X ..... not given to the petitioner and the respondent proceeded to pass orders only because the petitioner failed to respond and he has not applied his mind as to the documents available before the authority also - Such an act would amount to violation of principles of natural justice. The matter is remanded back to the respondent - petition allowed by way of remand. - W. P. (MD) No. 8256 of 2018 And M.P. (MD) No. 1 of 2012 - - - Dated:- 19-7-2018 - MR. M. GOVINDARAJ, J. For The Petitioner : Mr. P .R. Kumar For The Respondent : Mr.J.Padmavathi Devi, Special Government Pleader ORDER Challenging the assessment order passed by the respondent in TIN / 33534161488 / 2006-2007 under Tamilnadu VAT Act, dated 29.06.2010, the present writ petition is filed. 2. A perusal of the order shows that the order was passed for non-appearance of the dealer, despite receipt of summons. Now that, the petitioner would submit that he could not appear before the authority due to ill-health. Even at the time of assessment, no defects were found. The present order was passed on the best of judgment basis, disallowing ITC and exemption already claimed. 3. The learned counsel app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration. 16(1)(a): Where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, the assessing authority may, subject to the provisions of subsection (2), at any time within a period of five years from the date of order of the final assessment by the assessing authority, determine to the best of its judgment the turnover which has escaped assessment and assess the tax payable on such turnover after making such enquiry as it may consider necessary and after giving the dealer a reasonable opportunity to show cause against such assessment. 9. The relevant part of the circular dated 20.04.2001 (hereinafter, the said circular) is also set out below: 2. Fair opportunity is to be given to the assessee and judicial consideration given to the representations, evidences and materials furnished by him. But personal hearing need not be given unless the statute requires it (eg.Section22(2)) or the assessee asks for it. 10. Since, the questions overlap, all of them are discussed together. 11. Before dealing with those questions, this Court proposes to consider a few authorities on the content of the expression re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trol Appeal) Rules, 1930. The relevant clause in the rule provides an officer charge sheeted shall be required within a reasonable time to put in a written statement of his defence and state whether he desires to be heard in person. There is a further clause in the Rule, which lays down that if the charge sheeted officer so desires and the concerned authority so directs, an oral enquiry shall be held. Considering the said rule, the learned Judges held that if the charge sheeted officer desires, oral hearing is mandatory. The learned Judges held that this requirement is plainly based on considerations of natural justice and fair play (see para.13 at page 274). In this case also in the representation of the petitioner personal hearing was demanded in terms of the said Circular but the same was declined by the Revenue. 15. In the case of Travancore Rayons v. Union of India reported in AIR 1971 SC 862, which is a case under Central Excise and Salt Act, 1944, the question was whether the appellant company is entitled to a personal hearing in the revisional proceedings. Justice Shah, speaking for a Two-Judge Bench of the Honble Supreme Court, held that It is true that rules do not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Circular has been issued by the Commissioner who has to administer the provisions of the said Act. 19. Subsequently also, in the case of R.S.Nayak Vs. A.R.Antulay, (1984) 2 SCC 183 a Constitution Bench of the Supreme Court has referred to the principle of contemporanea exposito. In construing the provision of Section 21 of the Indian Penal Code the Supreme Court applied the principle of contemporanea exposito and held that an M.L.A. is not a public servant. 20. The Honble Supreme Court in the case of Supreme Court Advocates-on-Record Association Vs. Union of India, (1993) 4 SCC 441 referred to the actual practice in the matter of interpretation of constitutional provisions in the appointment of superior Judges. The interpretation on the basis of the actual practice is the principle of contemporanea exposito (See pages 694 and 695 of the report). 21. In a matter dealing with the taxation, the Honble Supreme Court in the case of Union of India and another Vs. Azadi Bachao Andolan and another, reported in AIR 2004 SC 1107 has explained the principle of contemporanea exposito by quoting Crawford on Statutory Construction, 1940 Ed. In the said decision the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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