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2017 Supreme(Jhk) 1703
IN THE HIGH COURT OF JHARKHAND AT RANCHI
D.N. Patel, Ratnaker Bhengra, JJ.
Narsaria Construction Private Limited - Appellant
Versus
State Of Jharkhand - Respondent
W.P. (T) No. 143 of 2017
Decided On : 16-01-2017
M/s A.R. Chaudhary and Amrita Sinha, Advocates, for the Petitioners; Mr. Rajesh Kumar, Advocate, for the Respondents
The central legal point established in the judgment is the importance of serving notice and providing an opportunity to the Assessee before passing orders related to tax liability.
Headnote:
Notice of Demand - Tax Liability - The court quashed and set aside the order and notice of demand due to lack of proper notice and opportunity to be heard before imposing tax liability. The court emphasized the minimum requirement of serving notice and providing an opportunity to the Assessee before passing such orders.
Fact of the Case:
The writ petition challenged the order, notice of demand, and certificate proceeding passed by the Deputy Commissioner, Commercial Taxes, Gumla Circle, Gumla, on the ground of lack of notice and opportunity to be heard.
Finding of the Court:
The court found that the order was passed without proper notice being served upon the petitioners, and emphasized the importance of serving notice and providing an opportunity to the Assessee before imposing tax liability.
Issues: The issues revolved around the lack of proper notice and opportunity to be heard before passing the order and imposing tax liability.
Ratio Decidendi: The court emphasized the minimum requirement of serving notice and providing an opportunity to the Assessee before passing orders related to tax liability.
Final Decision: The court quashed and set aside the order, notice of demand, and certificate proceeding, and remanded the matter to the Deputy Commissioner, Commercial Taxes, Gumla Circle, Gumla for deciding the tax liability afresh, with directions to provide adequate opportunity of being heard to the petitioners.
JUDGMENT
D.N. Patel, J. – This writ petition has been preferred challenging the order, dated 9th September, 2014 (Annexure 4 to the memo of the writ petition)passed by the Deputy Commissioner, Commercial Taxes, Gumla Circle, Gumla as well as Notice of Demand, dated 9th September, 2014 (Annexure 5 to the memo of the writ petition) as well as Certificate Proceeding being Certificate Case No. 20 of 2014-15 (Annexure 3 to the memo of the writ petition) mainly on the ground that no Notice of hearing has ever been given and ex parte order, dated 9th September, 2014 (Annexure 4 to the memo of the petition) has been passed by the Deputy Commissioner, Commercial Taxes, Gumla Circle, Gumla on the basis of deemed service of Notice much after conclusion of assessment proceedings without initiating any proceedings for reassessment. No Notice has ever been received by this petitioner and ex parte order has been passed vide order, dated 9th September, 2014 (Annexure 4 to the memo of the writ petition) and therefore, consequential orders, i.e. Notice of Demand, dated 9th September, 2014 (Annexure 5 to the memo of the writ petition) as well as Certificate Proceeding being Certificate Case No. 20 of 2014-15 (Annexure 3 to the memo of the writ petition) also deserve to be quashed and set aside.
Demand Notice, dated 9th September, 2014 deserves to be quashed and set aside because liability has been decided without giving any opportunity of being heard.
2. Having heard counsel appearing for both sides and looking to the facts and circumstances of the case, it appears that order, dated 9th September, 2014 (Annexure 4 to the memo of the writ petition) has been passed without Notice being served upon the petitioners. On the contrary, Notice has been served upon the guarantors of the petitioners. Such type of service of Notice is no Notice in the eyes of law, especially when tax liability is to be imposed upon the petitioners. The minimum requirement is that Notice of hearing should be served upon the Assessee before passing such order against the assessee. The Deputy Commissioner, Commercial Taxes, Gumla Circle, Gumla has lost sight of this fact. We fail to understand as to why the officer was in such a hurry. It ought to be kept in mind that whenever any liability of tax was to be imposed, all care should be taken that Notice should be served upon the Assessee. Thereafter, Assessee should be heard and thereafter, order should be passed. This minimum requirement has not been fulfilled in this case as a result of which work load of this court has unnecessarily been increased and therefore, such type of matters should be remanded.
3. We, therefore, quash and set aside the order dated 9th September, 2014 (Annexure 4 to the memo of the writ petition) to the extent it relates to the period 2006-07 passed by the Deputy Commissioner, Commercial Taxes, Gumla Circle, Gumla as well as Notice of Demand dated 9th September, 2014 (Annexure 5 to the memo of the writ petition) to the extent it relates to the period 2006-07 and the Certificate Proceeding being Certificate Case No. 20 of 2014-15 (Annexure 3 to the memo of the writ petition) to the extent it relates to the period 2006-07 initiated by the Sub-Divisional Magistrate-cum-Certificate Officer, Gumla and we, hereby, remand the matter to the Dy. Commissioner, Commercial Taxes, Gumla Circle, Gumla who will decide afresh the tax liability of the petitioners.
The order shall be passed by the said officer after giving adequate opportunity of being heard to the petitioners and the petitioners shall remain present before the said officer on 13th February, 2017 between 11 a.m. to 1 p.m. and thereafter, the officer can give a date as per his convenience.
4. The petitioners are at liberty to raise all the issues before the aforesaid officer. The decision will be taken by the Dy. Commissioner, Commercial Taxes, Gumla Circle, Gumla in accordance with law on the basis of evidences on record and without being influenced by
