Partly allowed

Imtiaz Ahmad v. Divisional Commissioner, Basti and 2 Others

Allahabad HC17 Dec 2018WTAX/1172/2018

Case brief

AI extract

What is this about?

The Single Judge allowed the writ petition, setting aside the Appellate Authority's order dated 20.07.2018 which rejected an appeal regarding entertainment tax based on a survey. Despite prior directions to provide a reasoned order and survey report, the authority failed to comply. The Court remanded the matter, treating the report as available via the counter affidavit and granting time for objec

What did the court decide?

The impugned order dated 20.07.2018 is set aside; matter remitted for decision without further recovery; petitioner granted 3 weeks to file objections and 4 months for final disposal.

Imtiaz Ahmad Vs Divisional Commissioner, Basti and 2 Others — Money Laundering | Allahabad HC (2018)

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Court No. - 7

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Case :- WRIT TAX No. - 1172 of 2018

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Petitioner :- Imtiaz Ahmad

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Respondent :- Divisional Commissioner, Basti And 2 Others Counsel for Petitioner :- Govind Krishna,Abhishek Krishna Counsel for Respondent :- C.S.C.,S.C.

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri Govind Krishna, learned counsel for the petitioner and Sri Jagdish Mishra, learned Standing Counsel.

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The present petition is directed against the order dated 20.07.2018 passed by the Appellate Authority whereby the petitioner's appeal arising from the order dated 03.03.2015 passed by the Assessing Officer, had been rejected.

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Admittedly, the petitioner is a cable operator who had been subjected to assessment on the basis of an alleged survey that is disclosed to have been conducted between 24.01.2015 to 10.02.2015. Arising therefrom allegations had been levelled against the petitioner of having 1440 number of subscribers/connections. In the appeal that was earlier decided by the Appellate Authority by its order dated 12.01.2018, an objection was raised by the petitioner that the survey report had not been made available to him before relying on the same. However, the Appellate Authority had after making note of such objection, dismissed the appeal. The specific ground to that effect also appears to exist in the memo of the appeal contained in paragraph no. 4 of the memo of the appeal.

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The earlier order of the Appellate Authority dated 12.01.2018 became subject matter of challenge in the

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earlier writ petition being Writ Tax No. 590 of 2018. It was allowed by the order dated 05.04.2018 with the following direction:

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"9. The appellate authority is under the statutory obligation to consider with due care every fact for and against the assessee and to record its finding in a manner which would clearly indicate as to whether the facts on which the order was passed have been established? Whether the facts so established afford sufficient ground for taking action? and whether assessment is excessive, adequate or inadequate? Absence of the findings to disclose reasons in an appellate order in the manner indicated above renders the order to be indefensible/unsustainable.

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10. Reason is the heart beat of every conclusion. In the absence of reasons the order becomes lifeless. Non recording of reasons renders the order to be violative of principles of natural justice. Reasons ensures transparency and fairness in decision making. It enables litigant to know reasons for acceptance or rejection of his prayer. It is statutory requirement of natural justice Reasons are really linchpin to administration of justice. It is link between the mind of the decision taker and the controversy in question. Thus failure to give reasons amounts to denial of justice.

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11. Aforenoted observations have been made merely for the purpose that the concerned authority should properly discharge the statutory function entrusted to him by law.

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12. In view of the above discussion, the impugned order dated 12.1.2018 passed by the Divisional Commissioner, Basti can not be sustained and is hereby quashed. Appeal is restored to its original number. Matter is remitted back to the Divisional Commissioner, Basti, with the direction to decide the appeal in accordance with law by a speaking and reasoned order, after affording opportunity of hearing to the parties, expeditiously, preferably within eight weeks from the date of presentation of a certified copy of this order."

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At present the petitioner's grievance is that despite the above specific directions, the impugned order has been passed by the Appellate Authority practically reiterating its earlier order without affording any opportunity to the petitioner to rebut the presumptions drawn on the basis of the survey report. In this regard, it has been submitted that besides the petitioner, there were number of other persons engaged in the same trade in the locality, whose details had been mentioned in the paragraph no. 2 in the memo of

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the appeal. Therefore, the petitioner contends that the alleged survey report was with reference to all such cable operators and it did not relate exclusively to the petitioner. If the survey report was made available to the petitioner, he would have been in a position to offer rebuttal to the same. In absence of the survey report being made available, the petitioner was handicapped and the Appellate Authority has erred in rejecting the appeal in such circumstances.

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Learned Standing Counsel on the other hand has relied on the documents annexed to the counter affidavit to submit that the survey report was in the knowledge of the petitioner, inasmuch as copy of such survey report has been annexed with the counter affidavit to this writ petition.

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While it is true that the document claimed to be the photocopy of the survey report, has been annexed to the counter affidavit to this writ petition, at the same time, the averment made by the petitioner in paragraph no. 18 of the writ petition was not specifically denied. In this regard, paragraph no. 18 of the writ petition read as under:

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"That the petitioner has categorically requested for providing the copy of the inspection made during survey by which 1440 subscribers mentioned therein but for obvious reason, copy of the list thereof has not been provided to the petitioner by the respondent no. 3 amounts to be inviolation of the procedure framed therein with respect to determination of the tax therein as well principle of natural justice. This legal aspect has been taken into consideration by the Hon'ble Court in the judgment rendered in Writ Tax No. 766 of 2007 on 4.7.2014. The copy of the judgment dated 4.7.2014 available on the High Court Allahabad website passed in Writ Tax No. 766 of 2007 is being filed herewith and marked as ANNEXURE NO. 11 to this Writ Petition."

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In reply, it has been stated thus in paragraph no. 16 to

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the counter affidavit, which read as under:

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"That in reply to the contents of paragraph no. 18 of the writ petition it is stated that the petitioner was required to pay the entertainment tax to the department with regard to total 1440 cable connections from the month of April, 2013, and on failure of the petitioner to deposit the same the impugned orders have been passed in the matter. The averments to the contrary are not admitted. Regarding the order dated 4.7.2014 passed by this Hon'ble Court suitable reply will be given at the time of hearing of the writ petition."

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Though the copy of the survey report appears to have been annexed with the counter affidavit, however, the same does not appear to have been made available to the petitioner before deciding the appeal, in remand.

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Besides the above, it also appears from perusal of the earlier order passed by the Appellate Authority dated 12.01.2018 that the petitioner had pressed this ground of appeal before the Appellate Authority at that stage itself. It therefore appears that the petitioner had been seriously pressing that ground from before. However, the same does not appears to have dealt with or decided by the Appellate Authority.

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Consequently, the impugned order dated 20.07.2018 passed by the Appellate Authority cannot be sustained and it is therefore set aside. The matter is remitted to the Appellate Authority to decide the appeal afresh, in accordance with law, keeping in mind the directions issued by this Court in the order dated 05.04.2018.

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Since the copy of the survey report has already been annexed with the counter affidavit to this writ petition, the same may be treated to have been made available to the petitioner and no further compliance is required to be made in that regard. The petitioner shall have opportunity

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of three weeks from today to file a written objection to the same, and the Appellate Authority may decide that issue accordingly. The aforesaid exercise may be concluded as expeditiously as possible, preferably within a period of four months from today.

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Till the period of four months, or till the disposal of appeal, whichever is earlier, no further recovery be made from the petitioner.

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With the aforesaid observations, the present petition is disposed of .

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Order Date :- 17.12.2018 Prakhar

Imtiaz Ahmad v. Divisional Commissioner, Basti and 2 Others

Case brief

What is this about?

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Imtiaz Ahmad v. Divisional Commissioner, Basti and 2 Others

Case brief

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