Order passed by without granting Personal Hearing violates principles of natural justice : Madras HC
IN THE HIGH COURT OF JUDICATURE AT MADRAS
The Relevant Text of the Order as follows :
5. The impugned orders as above are clearly contrary to law insofar as they are non-speaking and have been issued in violation of principles of natural justice, despite the specific request of the petitioner for personal hearing. Though the provisions of Section 84 of the Act do not specifically mandate an opportunity of personal hearing, except if the rectification is initiated suo motu at the instance of the Assessing Officer, it goes without saying that for fair disposal of a matter, an assessee/dealer should be heard in person in order to appreciate the contentions put forth prior to conclusion of the proceedings, all the more in a case where the dealer has specifically sought an opportunity of personal hearing.
6. I may take a cue in this regard from the Circular of the Commissioner of Commercial Tax bearing No.7 of 2014 dated 03.02.2014, where the Commissioner has instructed all the Assessing Officers to hear the assesses prior to finalization of proceedings in the following terms:
Circular No. 7/2014 BB1/3589/2014 Dated 3rd February, 2014.
Office of the Principal Secretary &
Commissioner of Commercial Taxes
Chepauk, Chennai -600 005.
Sub: Writ Petition / writ Appeal/Tax Case (Revision) – Disposal of cases – Meeting with Government Advocate – Certain guidelines and circular instructions issued.
1. During the course of meeting with the Law Officers of Madras high Court on 30.01.2014, it has been represented by them, that many Assessing Officers are passing orders without giving reasonable opportunity to dealers and violating the Principles of natural justice, which has resulted in mounting numbers of writ Petitions in the High Court leading to interim stay restraining the authorities proceeding further pursuant to the orders passed. After a considerable period, the writ petitions were disposed of by setting aside the assessment proceedings with direction to the authorities to take necessary action in accordance with law.
2. it is also further represented that in some of the cases, objections raised by the dealers on the pre-assessment revision notices are not properly examined/ discussed in the order and assessment orders simply state ” that the objections filed by the dealers are overruled and proposals are confirmed”, such type of orders will not also stand in the test of law. further, where there is a provision in the Act, requiring the dealer of being given a reasonable opportunity or being heard, which has also not been followed in many cases.
3. in the light of the above, the following circular instructions are issued which must be scrupulously followed by assessing officers while passing assessment orders. Joint Commissioners/ Deputy commissioners should verity at random the assessment orders passed by the Assessing Officer while taking up cursory inspection and ensure compliance with these basic procedures while passing orders.
a) Passing of orders:
Fifteen days time limit shall be given as reasonable opportunity to dealers before passing any order and it shall be reckoned from the date of service of the notice. No order shall be passed without being satisfied of the reasonable opportunity and adopting the following process.
i) After issue of notice calling for the objections, if any further time is requested by the dealer within a period of fifteen days, it shall be examined and reply to be given to the dealer regarding granting of time or not as the case may be only if, there exists a genuine reason.
ii) objections filed by the dealer on the pre assessment/revision notices shall be examined in each and every issue meticulously and speaking order shall be passed addressing the objections raised, in short, the speaking order which is complete shall be passed.
iii) As the provision in the TNVAT Act stipulates the conditions or granting of personal hearing, it may be intimated in the notice and it shall invariably be afforded to the dealer irrespective of whether the dealer has opted for personal hearing or not.
7. In the light of the discussion as aforesaid the impugned assessments and orders under Section 84 are set aside and will be redone de novo by the Assessing Officer. The petitioner will be heard by the Officer on Wednesday, the 9th of September, 2020 at 10.30 a.m., either virtually or by way of physical hearing as may be mutually convenient to the parties, to be communicated to the petitioner and orders shall be passed within a period of four (4) weeks from 09.09.2020.
8. These writ petitions are disposed in the above terms. Consequently, connected miscellaneous petitions are closed. No costs.
Tags : Judgement, GST, High Court
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