Writ petition challenging seizure of vehicle for VAT violation. Court quashed order by Sales Tax Officer due to pre-judgment before hearing and violation of natural justice.
Quashed impugned order, remitted with direction to dispose of pending revision within 3 months and reconsider matter afresh after hearing within 2 months.
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W.P.(C) No. 2902 of 2006
By way of this writ petition, petitioners have
challenged the order of seizure and confiscation of the vehicle No. WB-33-7756 U/s. 74(9) of the Orissa Value Added Tax Act, 2004 passed by the Sales Tax Officer, Investigation Unit, Balasore (O.P. No.1).
Learned counsel for the petitioners merely contended that the authority has violated the provisions of the Act in as much as the ground on which the notice was issued under Section 74 (9) of the Act. He further contended that the revision U/s. 74(5) of the Act, against the order, is still pending. In that view of the matter unless the revision application U/s. 74(5) of the Act attains finality the basis for initiating proceeding U/s. 74(9) is premature. He has also raised the contention that the authority which has taken the approval of the Commissioner has sent its proposal on 22.12.2005, which is clear from page 4 of the order of seizure, whereas the hearing was fixed on 29 December 2005. In that view of the matter, the authority
has prejudged the issue and hearing was an empty formality. Therefore, the proposal which was forwarded on
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22.12.2005 was predetermined and hearing was done only for the sake of formality, so that the order may not quash in any court of law on the ground of principles of natural justice.
On the other hand, learned counsel for the opposite party has supported the impugned order passed by the opposite party No.1 and stated that the authority has power under Section 74(9) of the Act to seize and confiscate the vehicle. It is further contended that when the matter was decided on 17.12.2005, the owner of the goods has paid the penalty as evident from Annexure-2. The vehicle was detained since the date of interception i.e. on 9.12.2005 and proceedings U/s. 74(9) of the Act initiated on 17.12.2005 and all the formalities as per procedure have been complied with, therefore, it is prayed that no interference is called for.
We have heard learned counsel for both the sides and perused the records. Taking into consideration that the impugned order came to be passed on 14.02.2006 was in clear violation of opportunity of hearing, in as much as, the fact that the proposal was sent to the Commissioner on 22.12.2005 and where as the hearing was fixed on
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29.12.2005. We accept the contention of the learned
counsel for the petitioner to that effect. Accordingly, the order impugned is quashed, the matter is remitted back to the opposite party No.1, with a direction to both the opposite parties that the revision petition of the petitioners pending before revisional authority (O.P.No.2) shall be disposed of in accordance with law within a period of three months and after disposal of the revision, the opposite party No.1 shall consider the matter afresh, after affording the opportunity of hearing to the petitioners, on its own merit within two months.
The writ petition is allowed to extent indicated above. No order as to costs.
.…….......…………… … .…….......……………… ( K.S. Jhaveri ) ( K.S. Jhaveri ) Chief Justice Chief Justice
…………………..……… …………………..……… ( Dr. B.R. Sarangi ) ( I. Mahanty ) Judge
AD
2 issues framed by the court
Whether an order of seizure and confiscation is valid if the authority has prejudged the issue before the hearing.
Whether proceedings under S. 74(9) are premature while a revision under S. 74(5) remains pending.
2 provisions across 1 enactments
Petitioner
Sales Tax Officer, Investigation Unit, Balasore
K.S. Jhaveri
Dr. B.R. Sarangi
I. Mahanty
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
