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TMI Blog2018 (8) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notice. 3. Having received the said show cause notice, the petitioner vide letter dated 23rd February, 2018 requested the respondents for giving reasonable time, so that it may file reply to the said show cause notice. But, without passing any order upon this request letter of the Assessee, hurriedly on 26th February, 2018 an ex-parte order was passed by the respondents, which is at Annexure-10 to the memo of this petition. On the same day i.e. on 26th February, 2018 itself, the demand notice was also issued to the petitioner. Against this order dated 26th February, 2018 (Annexure-10), appeal has been preferred before the Commissioner (Appeals). 4. It further appears from the facts of the case that on 07.03.2018 (Annexure-13) and on 08.03.2018 (Annexure-14) garnishee orders were also passed, because respondents have got specific target to recover the tax amount. There cannot be an achievement of target, in breach of law. Reasonable time ought to have been given to the Assessee to give reply to the show cause notice and at least, within the time limit of preferring appeal, no such garnishee order ought to have been passed by the respondents. Such speed the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Cooper v. Wandsworth Board of Works the principle was thus stated: (ER p. 420) "[E]ven God himself did not pass sentence upon Adam before he was called upon to make his defence. 'Adam' (says God), 'where art thou? Hast thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat?' " Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond. (Emphasis supplied). 8. It has been held by the Hon'ble Supreme Court in the case of Prakash Ratan Sinha v. State of Bihar & Others reported in (2009) 14 SCC 690 especially in paragraph no. 14 as under: "14. Corollary principles emanating from these cases are as to what particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case and that it is only where there is nothing in the statute to actually prohibit the giving of an opportunity of being heard and on the other hand, the nature of the statutory duty imposed on the decision maker itself implies an obligation to hear before deciding. These cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natural sense of what is right and wrong. 25. This aspect of procedural fairness, namely, right to a fair hearing, would mandate what is literally known as "hearing the other side". Prof. D.J. Galligan attempts to provide what he calls "a general theory of fair treatment" by exploring what it is that legal rules requiring procedural fairness might seek to achieve. He underlines the importance of arriving at correct decisions, which is not possible without adopting the aforesaid procedural fairness, by emphasising that taking of correct decisions would demonstrate that the system is working well. On the other hand, if mistakes are committed leading to incorrect decisions, it would mean that the system is not working well and the social good is to that extent diminished. The rule of procedure is to see that the law is applied accurately and, as a consequence, that the social good is realised. For taking this view, Galligan took support from Bentham, who wrote at length about the need to follow such principles of natural justice in civil and criminal trials and insisted that the said theory developed by Bentham can be transposed to other forms of decision-making as well. This jurispr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d other social needs: where the moral harm entailed by erroneous decisions is reasonably assessed and fairly distributed, procedures express society's commitment to equal concern and respect for all." 27. It, thus, cannot be denied that the principles of natural justice are grounded in procedural fairness which ensures taking of correct decisions and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both instrumental and non-instrumental terms. 28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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