TMI Blog2016 (3) TMI 1466X X X X Extracts X X X X X X X X Extracts X X X X ..... ut at the same time, we find that if on the second date the petitioner did not appear, the Assessing Authority had the option to proceed ex-parte or fix another date, which in the instant case did not happen. If the Assessing Officer proceeded ex-parte, he could have fixed another date for ex-parte hearing or after recording the absence of the petitioner could have proceeded ex-parte and passed an assessment order on that date itself, which in the instant case did not happen. Therefore, any assessment order made on the next date i.e. on 16th February, 2016 becomes erroneous, as no date was fixed for 16th February, 2016 for making an assessment. Such assessment order passed on 16th February, 2016 without due notice is apparently in gross vio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instant case was not existing. Tthe assessment orders cannot be sustained and are quashed - The writ petition is, accordingly, allowed at the admission stage. - HON'BLE TARUN AGARWALA AND HON'BLE VINOD KUMAR MISRA, JJ. For the Petitioner : Shambhu Chopra, Bharat Ji Agrawal, Piyush Agrawal For the Respondent : S.C., A.S.G.I., B.P. Singh ORDER We have heard Sri Bharat Ji Agarwal, learned Senior Counsel along with Sri Shubham Agarwal and Sri Piyush Agarwal for the petitioner and Sri C.B. Tripathi, learned Special Counsel for the State. By our order dated 14th March, 2016 we had directed the Special Counsel for the State to produce the original record relating to the assessment proceedings. We have perused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for adjournment in order to file a reply. The matter was adjourned and 15th February, 2015 was fixed. The order sheet of 15th February, 2016 indicates that the assessee, namely, the petitioner did not appear nor any application was filed for adjournment. No other order was passed thereafter. The order sheet indicates that an assessment order was passed on 16th February, 2016. The order sheet also indicates that some reply was given by the petitioner on 16th February, 2016 at 5:30 p.m. and, on the instructions given to the Special Counsel, the said reply was taken on record after the assessment order was passed. Be that as it may. We are of the opinion that the entire proceedings initiated by the Assessing Officer for making a provisiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) the amount of tax payable and amount of input tax credit admissible, in any other case, by passing a provisional order of assessment for such tax period. A perusal of the aforesaid provision indicates that an assessment order is required to be made by the Assessing Officer after making such inquiry as it deems fit and after giving an opportunity of being heard to the dealer. The words reasonable opportunity of being heard is of wide import. In the instant case, the assessment has been made in gross violation of the principles of natural justice as engrafted under Article 14 of the Constitution of India read with Section 25 of the Act. Mere issuance and service of notice is not sufficient. Reasonable opportunity of representing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he principles of natural justice. The principles engrafted in Sangram Singh Vs. Election Tribunal, AIR 1955 SC 425 is squarely applicable. In the light of the aforesaid, we are of the opinion that the procedure relating to granting adequate opportunity as provided under Article 25 (1) of the U.P. VAT Act was not followed. Reasonable opportunity of being heard was not given. Proper inquiry was not made and therefore, the ex-parte assessment order cannot be sustained. The petitioner in the present writ petition has challenged the ex-parte provisional assessment order dated 16th February, 2016 for the months of April 2015 to December, 2015 under the U.P. VAT Act. Even though, the petitioner has a remedy of filing an appeal, we are of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentary to the principle of natural justice and to ensure rule of law and to prevent the failure of justice. It is distressing feature and reprehensible and is a matter of great concern. The law frowns upon such conduct and must be deprecated. The respondent no. 2 has committed a manifest error and a serious procedural illegalities. In the instant case, provisional notice was issued on 9th February, 2016 and an assessment order was passed on 16th February, 2016 within a period of one week. In our opinion, undue haste and speed was exercised by the Assessing Officer. The Court fails to fathom as to what was the urgency in proceeding in such a cavalier fashion. There could have been some urgency if the period of limitation was expiring ..... X X X X Extracts X X X X X X X X Extracts X X X X
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