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TMI Blog2024 (1) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... asad, GP-7 ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) We are again faced with the problem of 'valiant tax executives clothed with judicial powers remembering their former capacity at the expense of the latter' (sic)- as stated in R.S Joshi, Sales Tax Officer, Gujarat and Others v. Ajit Mills Limited and Another; (1997) 4 SCC 98. 2. Bereft of the facts leading to the writ petition, we have to only notice that on 21.09.2022, an appeal filed by the assessee/petitioner against the order of assessment dated 17.02.2022 was rejected. There was no Appellate Tribunal constituted as provided under Section 109 of the Bihar Goods and Services Tax Act. 3. Even in that circumstance, the assessee paid up 20% of the tax in dispute being Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BGST Act provides for the said Appellate Tribunal constituted under the CGST Act to also hear the appeals under the BGST Act. Section 112 enables any person aggrieved by an order passed against him under Section 107 or Section 108 of the BGST Act or the CGST Act to appeal to the Appellate Tribunal against such order within three months from the date on which the order sought to be appealed against is communicated to the person preferring the appeal. Sub-section (8) of Section 112 makes it mandatory for an appeal to be instituted; that the appellant pays in full the amount of tax, interest, fine, fee and penalty arising from the impugned order as admitted by him and a sum equal to twenty per cent of the remaining amount of tax in dispute, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Government Advocate is also that there is no requirement for a notice and reasons alone are to be recorded, which is available in the files, an extract of which is produced as Annexure-D along with the supplementary counter affidavit dated 10.05.2023 filed on behalf of Respondent Nos. 2 and 3. The reasons stated, as evident from the extract of the file which is also dated 27.03.2023 is that the financial year 2022-23 is coming to an end and there are bank holidays on the immediate days following. We cannot but express our deep anguish and dissatisfaction in the reasons recorded by the officer. The imminent bank holidays of 2 or 3 days and the close of the financial year, we are afraid, cannot be termed valid reasons to justify a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no such sequatur. The silence of a statute has no exclusionary effect except where it flows from necessary implication. Article 324 vests a wide power and where some direct consequence on candidates emanates from its exercise we must read this functional obligation." [underlining by us for emphasis] 12. The aforesaid declaration of law made with respect to a decision cancelling a poll, applies across the board to every judicial and quasi-judicial order and action taken. The principles of natural justice stand embedded in every coercive action taken by a statutory authority, even within the four corners of the law; when it could, in the normal circumstances cause prejudice to the person against whom such proceedings are levelled. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as may be specified by him." [underlining by us for emphasis] Hence, when reasons are recorded in writing, there is a duty on the Assessing Officer to specify the time within which the amounts are to be paid which intimation has to go to the assessee. 14. In this context, we also have to notice that the Appellate Tribunal under Section 109 of the CGST Act has not yet been constituted. We would not rely at all on the equitable directions issued by this Court in various petitions staying recovery on payment of twenty per cent of the balance tax due as provided under Section 112(8). However, it is very evident that even the Central Government and the State Government was conscious of the fact of the Tribunal having not yet been const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the twenty percent of the total amounts assessed, in addition to the ten percent paid at the first appellate stage and any admitted tax, if remaining unpaid. The tax officer had definitely erred, that too egregiously, to the extent of his action being termed high-handed, in surreptitiously making the recovery of the entire amounts due as tax, interest and penalty, even contrary to the legislative mandate. As we found, the reasons stated are unconvincing and clearly untenable and the approaching closure of the financial year end can only be a motivation to enhance the individual targets assigned by the higher authorities. 6. We had in the aforesaid matter directed the refund of the tax recovered and also imposed a cost on the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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