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TMI Blog2024 (5) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... issued under Section 73(1) of the Act. A reminder dated 24.11.2023 was also issued to him on 30.11.2023. The petitioner claims to have submitted his reply thereto on 23.12.2023 annexing thereto copies of his ledger, balance sheet and copy of books of accounts. Further, a reply was also submitted on 31.12.2023 to bring on record the working sheets etc. 5. The grievance of the petitioner is, the above replies have been completely ignored. Without returning any finding to reject the explanation furnished by the petitioner, the adjudicating authority has reached a conclusion that the explanation furnished by the petitioner was not worthy of acceptance. However, without making any discussion as to nature and identity of the commodities dealt with by the petitioner and without considering the issue of rate of tax specified under the Schedule to the Act, wholly whimsically, entire turnover has been subjected to tax @ 28%. Also, without specifying any rate of interest or the period for which such interest may be charged, against demand of tax Rs. 40,45,214/-, interest Rs. 44,90,520.02/- has been demanded. Thus, the adjudication order dated 31.12.2023 is described as wholly arbitrary and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner were found credible. Therefore, the adjudicating authority has not assigned any reason to submit such turnover at the highest rate of tax i.e. @ 28%. In doing that he has acted unmindful of the fact that it was the further claim of the petitioner arising from the same books of accounts and that part of turnover was exempt. 11. It has been left to the speculation of the Court how such laconic order has come into existence. It appears that the time limit prescribed by the statute alone may have caused force such an error. 12. The compulsion arising from the rule of limitation may not be seen favourably to allow rules of natural justice to be broken. In the present case, the petitioner was not at fault for the delay in the proceedings. The notice was issued late. The petitioner responded in writing and submitted his application. That has been rejected without assigning any reasons. The adjudication order is clearly laconic. 13. Thus, section 107(11) of the Act reads as below : "The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee makes a specific request in terms of Section 144B(vii), that would be enforced on the Assessing Authority through National Faceless Assessment Centre in accordance with Section 144B(6)(viii). However, the provision cannot be read to mean that opportunity of personal hearing may be granted only where the assessee specifically requests for the same. 6. There is no warrant to interpret that the processual law prescribes that opportunity of personal hearing may not be granted by the Assessing Authority unless specifically requested for by the petitioner, in writing. To do that would be to give meaning to the word "request" used under Section 144B(6)(vii) and (viii), larger and much wider than intended by the legislature. Under the general Scheme of the Act, assessment orders are to be passed after giving opportunity to the assessee to present his case. To that extent, the revenue does not dispute the contention of the assessee and it does not claim a right to frame ex parte assessment orders. It contends, the opportunity for personal hearing is not inherent in the right to participate in the assessment proceedings. The assessee may participate in the assessment proceedings by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 251 of the Act whereby the power of the first appeal authority to "set aside" a defective assessment order and to remit the matter to the Assessing Officer, has been done away. At present, the first appeal authorities may either "confirm" or "reduce" or "enhance" or "annul" an assessment order. In absence of power to remit the matter to the assessing authority to make a fresh assessment, in the case of an ex parte order wrongly drawn on ex parte basis, the appeal power would remain seriously restricted. The appeal authority would be forced to entertain the appeal on all merit issues and exercise the powers of the Assessing Officer. While it is not in doubt that the appeal authority has all powers of Assessing Officer, at the same time, it is not the Scheme of the Act to require the job of the Assessing Authority to be routinely performed by the First Appeal Authority. If the opportunity of personal hearing is to be declined by the Assessing Officer by way of a normal practice, we foresee such situations are bound to arise in the normal course of things. In any case, the assessee would have lost one opportunity and tier of appeal, for no fault on its part. 11. Therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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