TMI Blog2022 (6) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... found that the impugned actions of the authorities concerned, particularly of the appellant, had not been strictly in conformity with law or were irregular or were illegal or even perverse, such findings, by themselves, were not leading to an inference as corollary that there had been any deliberate action or omission on the part of the Assessing Authority or the Registering Authority; or that any tactics were adopted, as per the expression employed by the High Court. Every erroneous, illegal or even perverse order/action, by itself, cannot be termed as wanting in good faith or suffering from malafide . In the present case, when admittedly the respondent No. 1 itself had applied for registration of the change of place of business nearly 11 months after the alleged event; and at the time of drawing up the assessment orders, the appellant as the Assessing Authority had no other registered address of the respondent No. 1 on record, his actions of passing ex parte assessment orders could not have been termed as being deliberate or wanting in good faith, particularly in view of the facts that attempts were indeed made from his office to get the notices served on the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. In these appeals, the appellant, presently working as Joint Commissioner, Commercial Tax, Moradabad, has questioned the order dated 29.02.2016 in Writ Petition Nos. 80 of 2016 and 168 of 2016 as also the order dated 02.08.2016 in Writ Tax No. 546 of 2016, as passed by the High Court of Judicature at Allahabad. 2.1. The appellant is aggrieved of the orders impugned, insofar as adverse observations and remarks have been made and directions have been issued in relation to his acts and omissions while functioning as the Deputy Commissioner, Commercial Tax, Range-II, Sector-2, Noida, viz., passing ex parte assessment orders and enforcing recovery proceedings under the Uttar Pradesh Value Added Tax Act, 2008 [1] , concerning the writ petitioner (respondent No. 1 herein) [2] . 3. The impugned orders have otherwise not been challenged by the State or by the writ petitioner. Therefore, dilation on all the factual aspects is not necessary. The aspects relevant for the present purpose are as follows: 3.1. By way of Writ Petition No. 80 of 2016, the writ petitioner questioned the recovery proceedings, as taken up against it pursuant to the ex parte provisional assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Registering Authority to process the application made by the writ petitioner on 05.12.2013 for change of place of business after permitting the writ petitioner to deposit the requisite fees. 4.3. The High Court found that a huge amount to the tune of Rs. 49,82,01,250/- had been withdrawn by the department from the writ petitioner s account without authority of law. Hence, the Deputy Commissioner, Commercial Taxes, Range-II, Noida was directed to refund the said amount together with interest as per Section 40 of the UP VAT Act after adjusting the admitted tax. The High Court, of course, left it open for the Assessing Authority to make fresh assessments in accordance with law, after proper service of notice upon the writ petitioner and after giving them an opportunity of hearing. 5. In the aforesaid part of the impugned common order dated 29.02.2016 i.e., upto paragraph 34, the High Court dealt with the core issues involved in the case and contentions of the respective parties and, thereafter, passed the orders consequent to its findings on the material issues that there had not been proper service of notice upon the writ petitioner and the ex parte orders were not sustaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment order indicates that the first and last date of hearing of the assessment proceedings was 10.12.2015 and that the assessment order was passed on 15.12.2015. The counter affidavit reveals that the assessment order was served by attachment at the Noida address. This was done deliberately by the respondents so that the respondents could withdraw the amount through garnishee notices by exerting pressure upon the bank authorities. The Court gets an uncanny feeling that a deliberate attempt was made by the respondents to withdraw the money from the petitioner's bank account through dubious mean by passing ex-parte assessment orders and not allowing it to be served validly upon the petitioner. If in this cavalier fashion the Commercial Tax Department functions and withdraws huge sums of money without valid service, it would be difficult for big business houses to carry on their business. Such business houses would be forced to shift their business outside the State of Uttar Pradesh. 37. Consequently, the petitioners are entitled for cost. The writ petitions are allowed with cost amounting to Rs. 2,00,000/- (Rupees two lakhs only), which will be paid by the Commercial Tax Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 before this Court. He shall also file para-wise reply to the writ petition on the next date. 4. Until further orders, the effect and operation of impugned assessment order dated 04.05.2016 and notice dated 07.04.2016 shall remain stayed. 7.2. When the matter was taken up for further consideration by the High Court on 02.08.2016, it was submitted by the learned standing counsel for the department that the impugned assessment orders had since been withdrawn by the present appellant on 23.07.2016 and, therefore, the writ petition was practically rendered infructuous. It was also stated on behalf of the appellant, who was present in Court, that there had been a mistake on his part and he was tendering an apology, which could be considered by the Court. 7.3. The High Court, however, viewed the functioning of the appellant seriously questionable, particularly for his acts and omissions after the strictures in, and penal costs imposed by, the order dated 29.02.2016. Thus, while imposing costs of Rs. 50,000/- personally on the appellant, the High Court made the observations that departmental action be taken and finalised at the earliest and the department would also consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and therefore, Court may consider the same and pass appropriate order. 18. In these facts and circumstances we are satisfied that here is a forced litigation by unmindful illegal act on the part of respondent 1 and realizing the same he has also withdrawn the impugned orders and also considered the fact he is an authority which was already adversely commenced by this Court in its order dated 29.02.2016 still he did not care to such observations. It is again a fit case where respondent 1 himself would be saddled with cost by this litigation. Since the impugned order of assessment have already been recalled by order dated 23.07.2016 in this regard no further order is required but we hold that respondent 1 being guilty of compelling and forcing second round of litigation upon petitioner must be saddled with cost which we quantify to Rs. 50,000/-. 19. We also direct Principal Secretary, Trade Tax, U.P. Government to look into the manner in which respondent 1 has functioned in this case and despite strictures and penal cost imposed by this Court in earlier judgment dated 29.02.2016 and also directing Commissioner Trade Tax to get an inquiry conducted against erring officials, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the application for change of address was ultimately granted on 22.07.2016 whereby, the department accepted the change of address with effect from 20.01.2013; and that immediately after passing of such an order by the Registering Authority i.e., the Assistant Commissioner, Commercial Tax, Division-2, Noida, the appellant withdrew the order dated 04.05.2016 passed by him because with such change of address, he ceased to be having jurisdiction in the matter. The contention of the learned senior counsel, however, is that before passing of such an order by the competent authority, the appellant could have only proceeded on the basis of position obtainable on record and as such, want of bonafide cannot be imputed on him. Thus, according to the learned counsel, the strictures and other observations made in the orders impugned deserve to be set aside. 8.4. Learned senior counsel for the appellant has also referred to Section 67 of the UP VAT Act to submit that statutory protection is available to the officers like the appellant against legal proceedings in relation to anything done in good faith in discharge of their duties and jurisdiction. 9. Mr. R. K. Raizada, learned senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned deserve to be annulled with appropriate order towards the amount of Rs. 2,00,000/- awarded as costs, which has been fairly given up by the respondent No. 1. 12. So far as the observations and findings in the impugned order dated 29.02.2016 relating to the merits of the case are concerned, no comments are required in that relation, for the same having not been challenged by the State. However, in our view, even when all the findings of the High Court in the principal part of order dated 29.02.2016 are accepted, they would only lead to the result that the impugned actions in drawing up ex parte assessment orders and then seeking to enforce recovery as also the impugned action in rejecting the application for registration of change of place of business did not meet with the approval of the High Court. Such disapproval of the High Court had been essentially based on its interpretation of the applicable rules as also its analysis of the factual aspects concerning the issues involved in the writ petition. 13. Having examined the matter in its totality, we are of the view that even if the High Court found that the impugned actions of the authorities concerned, particularly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be considered as carrying the elements of malice or want of good faith. 16. In our view, for imputing motives and drawing inference about want of good faith in any person, particularly a statutory authority, something more than mere error or fault ought to exist. Nothing concrete is available on record to impute motives in the appellant, even if his actions/omissions while functioning as Assessing Authority otherwise called for disapproval. 17. In the questioned parts of the impugned orders, the High Court seems to have taken rather a sterner view of the matter, which was not required in the given set of facts and circumstances. Noticeably, the appellant was not impleaded personally a party in the first two writ petitions which were decided by the common order dated 29.02.2016. The comments or remarks which were to operate personally against the appellant were not even called for without the appellant having been joined personally a party and having been extended an opportunity of hearing and explanation. In the third writ petition decided by the order dated 02.08.2016, though the appellant was personally joined as a party-respondent, when he had withdrawn the order date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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