M/S Essar Oil Ltd v. The State of Assam and 2 Ors

JUDGMENT & ORDER (ORAL)

¶1Heard Ms. N. Hawelia, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned Standing Counsel for the Finance and Taxation Department, Government of Assam representing the respondent Nos. 1, 2 and 3.

¶2The present writ petition is filed under Article 226 of the Constitution of India assailing an order of assessment dated 16.03.2015 passed by the Superintendent of Taxes, Central VAT Audit Team, Guwahati, Assam for the assessment year 2011-12 under Section 40 of the Assam Value Added Tax Act 2003 read with Rule 25 of the Assam Value Added Tax Rules read with Section 9(2) of the Central Sales Tax Act, 1956.

¶3Though the aforesaid assessment order has been challenged in the present Page No.# 3/5 writ petition on various grounds touching merit of the determination made, however, Ms. N. Hawelia, the learned counsel for the petitioner has confined her argument only to the point that such assessment order has been passed without giving any reasonable opportunity of hearing.

¶4Referring to the Notice dated Nil December, 2014, issued under Section 40 of the Assam Value Added Tax Act, 2003, the learned counsel for the petitioner submits that by the aforesaid notice, the petitioner was asked to explain and to show cause, by appearing personally or through authorized agent, on or before

24.12.2014, as to why the assessment for the period 2011-2012 shall not be completed on the basis of facts and sales as detailed in the aforesaid notice. The petitioner had appeared before the authority sought for an adjournment and prayed to extend time to submit the reply, however, such prayer has been rejected by an order dated 10.03.2015, without any justifiable ground and therefore, according to Ms. N. Hawelia, learned counsel for the petitioner, the opportunity granted cannot be treated as reasonable opportunity of hearing.

¶5Accordingly, Ms. N. Hawelia, learned counsel for the petitioner submits that the impugned assessment order has been passed violating the principles of nature justice inasmuch as an assessee is entitled for reasonable time to reply such show cause notice, more particularly, when the assessment relates to a very long period. Accordingly, she submits that the impugned order of assessment dated

16.03.2015 is liable to be set aside and quashed being violative of principles of natural justice and a direction may be issued to make assessment afresh by giving a reasonable opportunity to the petitioner.

¶6Per contra Mr. B. Gogoi, learned Standing Counsel for the Finance and Taxation Department, Government of Assam representing the respondent Nos. 1, 2 and 3, submits that several opportunities were given and in spite of such opportunities, the petitioner had failed to reply to the show cause notice and therefore, there Page No.# 4/5 was no wrong in the proceeding ex-parte against the petitioner. Accordingly, no fault can be attributed to the Superintendent of Taxes, Central VAT Audit Team, Guwahati, Assam in proceeding with the matter ex-parte and passing the impugned order of assessment.

¶7This Court has given anxious consideration to the submissions advanced by the learned counsel for the parties. Also perused the materials available on record.

¶8Admittedly, after receiving of the notice, the petitioner on 09.02.2015 (Annexure-II) made a prayer before the Superintendent of Taxes, Central VAT Audit Team seeking information which are in the possession of the Superintendent of Taxes, Central VAT Audit Team, in terms of the show cause notice. Thus, such application was filed beyond the stipulated date of appearance i.e. beyond 24.12.2014. Thereafter, by Annexure-III dated 10.03.2015, the petitioner submitted a reply and on the same date i.e. on 10.03.2015, the petitioner represented by their counsels, filed their petition seeking further 2

(two) months time for correction of defective "C" Forms and requested to return back the original "C" Form in question. However, the Superintendent of Taxes, Central VAT Audit Team, by the impugned order dated 10.03.2015 rejected such prayer on the ground that sufficient time was allowed to the petitioner earlier.

¶9It is by now well settled that the principles of natural justice have an universal application and constitute an important facet of procedural propriety envisaged under Article 14 of the Constitution of India. It is equally well settled that administrative and adjudicatory proceeding, which entails significant civil consequence must be held in consonance with the principles of natural justice to meet the requirement of Article 14 of the Constitution of India. However, in the case in hand, time was granted to the petitioner inasmuch as admittedly, the petitioner first appeared before the Superintendent of Taxes, Central VAT Audit Team on 09.02.2015 whereas in terms of show cause notice, the date was fixed Page No.# 5/5 on 24.12.2014. Therefore, it cannot be said that no reasonable opportunity was granted to the petitioner to place their defence.

¶10That being the position, this Court finds no infirmity in the action of the Superintendent of Taxes, Central VAT Audit Team in rejecting further prayer of the petitioner. Accordingly, the present writ petition stands dismissed. JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010234372015 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/2296/2015ooooooo M/SoESSARoOILoLTD. AoCOMPANYoINCORPORATEDoUNDERoTHEoPROVISIONSoOFoCOMPANIESo ACT o1956oANDoHAVINGoITSoOFFICEoAToCOMMERCIALoCOMPLEX o1SToFLOOR oTRIBENI oULUBARI oG.S.oROAD oGUWAHATI oASSAM oREP.oBYoSRIoSAMARJIToNEOG oSONoOFoLT.oDURGAoPRASADoNEOG oR/OoLACHIToNAGAR oGUWAHATI oASSAM. oVERSUS THEoSTATEoOFoASSAMoANDo2oORS REP.oBYoTHEoCOMMISSIONERoANDoSECRETARY oTOoTHEoGOVT.oOFoASSAM oDEPARTMENToOFoFINANCEoANDoTAXATION oDISPUR oASSAM oGUWAHATI-o781006. 2:THEoCOMMISSIONERoOFoTAXES ASSAMoKARoBHAVAN oDISPUR Page No.# 2/5 GUWAHATI- 781006. 3:THE SUPERINTENDENT OF TAXES CENTRAL VAT AUDIT GUWAHATI KAR BHAWAN GUWAHATI ASSAM. ------------ Advocate for : MS.N HAWELIA Advocate for : MR.S SAIKIA appearing for THE STATE OF ASSAM AND 2 ORS BEFORE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY For the Petitioner : Ms. N. Hawelia, Adv. For the Respondents : Mr. B. Gogoi, Standing Counsel,. Date of Hearing : 22.05.2024 Date of Judgment : 22.05.2024