9911796707
TMI Blog2020 (5) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... me to a standstill and was closed from the year of 1999 due to heavy losses. It is further alleged by the petitioner that the Commercial Tax Officer vide orders dated 27.12.1997 and 20.03.1998 had completed the assessment under the M.P. CT CST and Entry Tax Act for the said periods on the basis of books of accounts after due verification and enquiry. The respondent No.2, it is alleged, reopened the original assessments of the said periods as aforesaid, under the directions of the Deputy Divisional Commissioner of Commercial Tax, Gwalior on the basis of some information received from Krishi Upaj Mandi Samiti, Guna (M.P.) as regards purchase made by petitioner. It is alleged that no opportunity during the reopening and reassessment proceedings was afforded to the petitioner and the same were conducted ex parte by passing appropriate orders on 03.12.2001 vide Annexure P-1, P-2, P-3, P-4, P-5 and P-6. It is submitted that consequently additional tax under the Central Sales Tax Act separately for the said two periods and penalty u/Sec.28 of the M.P. C.T. Act separately for the two periods were levied. It is further alleged that petitioner came to know of these impugned orders of reasses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Lalitpur and others [1988 (Supp.) SCC 421]" and two orders of the Division Bench of this Court rendered on 20.07.2010 in WP.442/2004 [M/s Govind Trading Company Vs. State of M.P. and others] and the other rendered on 08.08.2019 in WP.5256/2006 [M/s Mannulal Gyanichand, Shivpuri Vs. State of M.P. and others] submits that the requirement of reasonable opportunity inherently involves the opportunity to cross-examine. Relevant para 4 and 5 of the judgment in the case of K.T. Shaduli Grocery Dealer Etc. (supra) which has been followed in all the subsequent decisions cited by learned counsel for the petitioner are reproduced below for ready reference and convenience: "4. Now, in the present case, we are not concerned with a situation where the rule of audi alterem partem has to be read into the statutory provision empowering the taxing authorities to assess the tax. Section 17, sub-section (3), under which the assessment to sales tax has been made on the assessee provides as follows: If no return is submitted by the dealer under sub section (1) within the prescribed period, or if the return submitted by him appears to the assessing authority to be incorrect or incomplete, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiry, because the best judgment assessment, which is the action under Section 17, sub-section (3) follows upon the inquiry and the "reasonable opportunity of being heard" must extend to the whole of the inquiry, including both stages. The requirement of the first part of the proviso that the assessee should be given a "reasonable opportunity of being heard" before making best judgment assessment merely embodies the audi alterem partem rule and what is the content of this opportunity would depend, as pointed out above, to a great extent on the facts and circumstances of each case. The question debated before us was whether this opportunity of being heard granted under the first part of the proviso included an opportunity to cross-examine Haji Usmankutty and other wholesale dealers on the basis of whose books of accounts the Sales Tax Officer disbelieved the account of the assessee and came to the finding that the returns submitted by the assessee were incorrect and incomplete. But it is not necessary for the purpose of the present appeals to decide this question since we find that in any event the assessee was entitled to this opportunity under the second part of the proviso. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... showing that the return submitted by the assessee was incorrect and incomplete, the assessee was entitled to have Hazi Usmankutty and other wholesale dealers summoned as witnesses for cross-examination. It can hardly be disputed that cross-examination is one of the most efficacious methods of establishing truth and exposing falsehood. Here, it was not disputed on behalf of the Revenue that the assessee in both cases applied to the Sales Tax Officer for summoning Hazi Usmankutty and other wholesale dealers for cross-examination, but his application was turned down by the Sales Tax Officer. This act of the Sales Tax Officer in refusing to summon Hazi Usmankutty and other wholesale dealers for cross-examination by the assessee clearly constituted infraction of the right conferred on the assessee by the second part of the proviso and that vitiated the orders of assessment made against the assessee." (6) From the aforesaid, it appears that grant of an opportunity to cross-examine is a concomitant of the expression "Reasonable Opportunity". In the instant case, the matter was remanded by the State only for the purpose that opportunity of cross-examination which was not afforded to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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