M/S. Om Oil Industries vs. The Commercial Lax Officer-I (Fac).
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THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HON’BLE SMT JUSTICE V.SUJATHA ORDER: (per the Hon’ble Sri Justice C.Praveen Kumar)
The present Writ Petition came to be filed seeking issuance of Writ of Mandamus for the following relief: “...to issue an appropriate Writ, Order or Direction, more particularly in the nature of MANDAMUS declaring that the impugned Order of Assessment passed by the First Respondent vide Order no.ZH371021OD74525, dated 27.10.2021, for the Assessment Year 2015-16 (April 2015 to December, 2015) under the Central Sales Tax Act, 1956, without following the remand directions contained in W.P.No.4792 of 2021, dated 07-07-2021, and without arranging for the return of the seized records of the petitioner by the Enforcement Wing to enable it to file its objections though specifically directed by this Hon’ble High Court in the said remand order, without considering and without giving any discussions/reasons with regard to the objections and case laws filed by the Petitioner, and without granting Input Tax Credit though the Petitioner has complied with all the conditions, and as the very assessment was made on the basis of findings of the Assessment Order passed by the Assistant Commissioner (CT) Enforcement Wing against a Third Party without any independent enquiry, corroborative evidence or application of mind, by treating the Petitioner as his benami, as arbitrary, capricious, without juri iction, violative of the principles of natural justice, contrary to law, facts and is illegal, and consequently set aside the same and pass such other order or orders....”
Heard both sides.
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Sri G. Narendra Chetty, learned counsel for the petitioner, would submit that though the Division Bench of this Court in Writ Petition No.4792 of 2021, directed the 3rd respondent-assessing officer to summon the documents from the 2nd respondent- Commercial Tax Officer-II and pass orders in accordance with law, after hearing the petitioner, but the same has not been done till date.
Sri T.C.D. Sekhar, learned Government Pleader for Commercial Tax opposed the same, contending that as the request of the petitioner in the representation dated 18.10.2021, was only to consider the submissions and the objections raised, the question of summoning the documents from the Commercial Tax Officer wound not arise. He further submits that the documents were summoned from the Commercial Tax Officer and the petitioner was made to peruse the said documents, advance arguments and thereafter the order impugned came to be passed.
It is noted that earlier, though the petitioners have assailed the order dated 03.03.2020 imposing additional tax liability of Rs.18,89,037/- upon it, on the limited issue that it was unable to justify its plea of input tax credit, as the purchase bills, sale bills and way bills required to establish its claim of input tax credit had been seized and were in the custody of the 3rd respondent- assessing officer at the time of assessment, the Division Bench of this Court, by an order dated 07.07.2021, while disposing of the Writ Petition No.4792 of 2021, passed the following order: “It appears from the submissions at the bar relevant documents i.e., purchase bills, sale bills and way bills, which were sought to be relied upon by the assessee in support of its input tax credit claim, could not be produced during the assessment hearing as the 3
documents were in the custody of the 2nd respondent. A request was made to the 2nd respondent to supply the documents, but he failed to do so. Under such circumstances, the assessing officer proceeded with the assessment without considering such documents. It is trite law that a quasi judicial authority must give adequate opportunity to a party to produce documents in support of his claim during adjudication. In the present case, the petitioner-assessee had made all efforts to produce the relevant documents by making prayer before the 2nd respondent, who was in possession of the said documents. However, 2nd respondent for reasons best known to him failed/neglected to supply the documents. Under such circumstances, the assessing officer ought to have either granted adjournment for production of the documents by the petitioner or issued notice upon the 2nd respondent to submit the documents before him. Without taking recourse to either of the procedures, the assessing officer illegally assessed the tax liability of the petitioner-assessee without considering the said documents. The factual matrix of the case, therefore, discloses a clear breach of fair and just procedure disentitling the petitioner an adequate opportunity of production of relevant documents during assessment hearing. Hence, we are inclined to interfere with the impugned order of assessment in the writ proceedings. In the light of the aforesaid discussion, the Writ Petition is allowed, setting aside the impugned order of assessment and the matter is remanded before the 3rd respondent-assessing officer, who shall proceed with the assessment after issuing notice upon the 2nd respondent to produce the documents (as sought for by the petitioner) which are claimed to be in the custody of the said officer. The 2nd respondent shall comply with such notice within fortnight from the date of service of the said notice and the assessing officer after due
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consideration of the materials produced before him and upon giving an opportunity of hearing to the petitioner pass appropriate order in accordance with law. We make it clear we have not expressed any opinion with regard to the merits of the claim of the petitioner with regard to input tax credit and the same is left open to be decided by the assessing officer independently in accordance with law on the basis of the materials produced before him. The entire exercise shall be concluded within three (3) months from the date of communication of this order. There shall be no order as to costs.”
Pursuant to the said order passed, the petitioner herein is said to have made representations dated 04.09.2021, 29.09.2021, 08.10.2021 and 18.10.2021 requesting the assessing officer to furnish documents that were directed to be summoned from the Enforcement Wing. But the case of the petitioner appears to be that without furnishing any documents viz., purchase bills, sale bills and way bills etc., the 1st respondent passed the impugned order, thereby violating the order passed by the Division Bench of this Court in W.P.No.4792 of 2021. 7. Learned counsel for the petitioner took us through the order 27.10.2021 which is impugned in the present Writ Petition to show that nowhere in the order it has been mentioned about either showing the documents to the petitioner or permitting the petitioner to peruse the documents that were summoned from the Enforcement Wing.
We have gone through the said order. Nowhere do we find any opportunity being given to the petitioner to peruse the documents that were directed to be summoned from the Enforcement Wing.
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At this stage, learned Government Pleader for Commercial Tax would submit that way bills of the year 2015 were considered. A perusal of the order and the representations made by the petitioner would show that the way bill extract for the period of 03.11.2015 to 14.11.2015 only were looked into as against the tax period of October 2015 onwards. Hence, it cannot be said that the way bills, purchase bills and sale bills as directed by this Court in the earlier round of litigation were looked into while passing the impugned order. Apart from that the subject column of the order impugned only refers to the receipt of account books. Under those circumstances, it cannot be said that the direction given by this Court in Writ Petition No.4792 of 2021 has been complied with in letter and spirit.
Hence, the order under challenge is set aside and the matter is remanded back to the assessing authority to furnish a copy of the purchase bills, sale bills and way bills etc., as directed earlier by this Court in Writ Petition No.4792 of 2021 or at least permit the petitioner herein to go through the same and after hearing him personally, pass orders in accordance with law, which shall be within a period of four (4) weeks from the date of receipt of a copy of this order.
Accordingly, the Writ Petition is allowed. There shall be no order as to costs. Consequently, miscellaneous applications pending, if any in the Writ Petition, shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR
_______________________ JUSTICE V. SUJATHA Date: 02.03.2022 MP
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THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HON’BLE SMT JUSTICE V.SUJATHA
2022
MP
Reproduced from the public record of the Andhra Pradesh High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.