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TMI Blog2022 (6) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 order passed by the appellant in his capacity as the Assessing Authority. In response to the said writ petition, it was pointed out on behalf of the department that an application made by the writ petitioner for registering the changed address had already been rejected on 02.09.2014 and, therefore, ex parte order had rightly been passed after taking due steps for service of notice. 3.2. The said order dated 02.09.2014, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irected 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 sustainable. 6. However, before closing the matter, the High Court proceeded to express its opinion that the impugned actions, leading to ex parte orders/proceedings without proper service of notice, were of deliberate attempt on the part of the department against the interests of the writ petitioner; and the Assessing Authority adopted unfair tactics in getting the service effected in gross violation of the applicable rules. 6.1. The High Court, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anny 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 Department to the petitioner within two weeks from the date of filing of a certified copy of this order. If the amount is not paid, it would be open to the petitioner to move an appropriate application in this petition. 38. It would be open to the Commercial Tax Commissioner, Lucknow to institute an enquiry and fix responsibility on the erring officer for recovery of the said amount." 7. Even after the order so passed by the High Court, the appellant, aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn 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 as to whether the appellant was a person fit to be assigned such important quasi-judicial functions. The relevant part of the order dated 02.08.2016 could be usefully extracted as under:- "13. Additional Commissioner, Commercial Tax, Noida, sought a clarification from Commissioner, Commercial Tax, vide letter dated 29.06.2016 whereupon the Commissioner vide letter dated 20.07.2016 directed the registering authority to pass appropriate order in accordance with dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, respondent 1 has not cared to mend his ways to conduct but has proceeded to harass a dealer like petitioner and appropriate disciplinary action be taken at the earliest and finalise the same. It may also be considered by Principal Secretary, Trade Tax, U.P. Government as to whether, respondent 1 is a person fit to be assigned such important quasi-judicial functions. 20. A copy of this order shall be communicated forthwith for communication and compliance of the direction. 21. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enior 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 counsel appearing for the State has submitted that the State has proceeded in adequate compliance of the orders passed by the High Court; and has carried out inquiry as contemplated by the order dated 29.02.2016 but, further proceedings are put on hold, in view of the stay order passed by this Court in this matter on 27.01.2017. 10. Mr. Tarun Gulati, learned senior counsel appearing for the respondent No. 1 (writ petitioner) has submitted that the respondent No. 1 had not taken up any personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 sufferi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave 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 dated 04.05.2016 immediately after registration of changed address by the registering authority and had tendered an apology before the High Court, in our view, the matter could have been closed at that; and there was no necessity of stretching the matter too far and passing further orders for imposition of costs and for departmental actions with other comments regarding competence of the appellant to discharge quasi-judicial functions[4]. Having said that, we deem it appropriate to close this matter with annulment of strictures and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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