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Sri Venkataramana Manure Company Vs. the Deputy Commissioner of Commercial Taxes and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 756 of 1975
Judge
Reported in[1978]42STC189(AP)
AppellantSri Venkataramana Manure Company
RespondentThe Deputy Commissioner of Commercial Taxes and ors.
Appellant AdvocateS. Dasaratharama Reddi, Adv.
Respondent AdvocateThe Government Pleader
DispositionAppeal allowed
Excerpt:
.....is express mention of certain things, then anything not mentioned is excluded. - his main contention in the petition was that he was not given a personal hearing by the deputy commissioner and, therefore, his order is bad......coal on the ground that they were second sales in this state. while so, on 25th august, 1972, the deputy commissioner issued a notice to the appellant under section 20 of the act stating that he had purchased the railway receipts in respect of the turnover for coal while the goods were in transit in a common carrier, paid the freight charges and took delivery of the goods direct from the common carrier and, therefore, he became the first dealer, who sold the goods in the state. the deputy commissioner wanted to revise the assessment order passed by the deputy commercial tax officer dated 15th september, 1968, by cancelling the exemption allowed on the turnover of rs. 1,29,459.51. he called upon the appellant to file his objections, if any, against the proposed revision of assessment on.....
Judgment:

Gangadhara Rao, J.

1. The appellant is the petitioner in Writ Petition No. 7452 of 1973. He has filed this appeal against the dismissal of that writ petition by Raghuvir, J.

2. The appellant is a dealer in coal and other goods and he is a registered dealer under the Andhra Pradesh General Sales Tax Act (hereinafter referred to as the 'Act'). For the assessment year 1967-68, he was assessed to sales tax by the Deputy Commercial Tax Officer on 15th September, 1968. The said officer granted exemption to the appellant from payment of sales tax on his entire turnover of coal on the ground that they were second sales in this State. While so, on 25th August, 1972, the Deputy Commissioner issued a notice to the appellant under Section 20 of the Act stating that he had purchased the railway receipts in respect of the turnover for coal while the goods were in transit in a common carrier, paid the freight charges and took delivery of the goods direct from the common carrier and, therefore, he became the first dealer, who sold the goods in the State. The Deputy Commissioner wanted to revise the assessment order passed by the Deputy Commercial Tax Officer dated 15th September, 1968, by cancelling the exemption allowed on the turnover of Rs. 1,29,459.51. He called upon the appellant to file his objections, if any, against the proposed revision of assessment on or before 12th September, 1972. The appellant has filed his written objections before that date, but they are not produced before us either by the appellant or by the Government. But, from the order of the Deputy Commissioner and the writ petition, we gather that the appellant has stated that he has purchased coal from coal dealers at Vijayawada and Mangalagiri, that he paid sales tax to them on each purchase and that they had also issued certificates to that effect. He further stated that since the sales tax had already been collected once by the sellers and paid to the State Government by the first dealers, there was no need for him to pay the sales tax.

3. The Deputy Commissioner in his order did not advert to this contention of the appellant. On the ground that the assessee has purchased the goods while in transit by way of transfer of railway receipts, he held, that he was the first dealer in the State and, consequently, cancelled the exemption allowed to the appellant on his turnover. The assessing authority was directed to issue a demand notice accordingly to the appellant.

4. Questioning the validity of that order the appellant has filed the writ petition. His main contention in the petition was that he was not given a personal hearing by the Deputy Commissioner and, therefore, his order is bad.

5. My learned brother Raghuvir, J., held that that contention was not tenable and dismissed the writ petition.

6. In this appeal it is argued by Sri S. Dasaratharama Reddi, learned counsel for the appellant, that under Section 20 of the Andhra Pradesh General Sales Tax Act, the Deputy Commissioner while exercising the powers of revision is bound to give a personal hearing to the appellant since the proceedings are quasi-judicial. Stated in that broad terms, I am not prepared to agree with him. Section 20 of the Act empowers the Deputy Commissioner to call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to him, under the provisions of this Act, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of such proceeding and may pass such order in reference thereto as he thinks fit. But, in relation to an order of assessment passed under the Act, he could exercise the power of revision only within such period not exceeding four years from the date on which an order was served on the dealer as may be prescribed. He could not pass an order in revision enhancing any assessment unless an opportunity has been given to the assessee to show cause against the proposed enhancement.

7. In this case, the Deputy Commissioner did give a notice to the appellant to show cause against the proposed enhancement and the appellant submitted his explanation. He did not ask for any personal hearing. Thereafter, the Deputy Commissioner disposed of the revision.

8. The section as such does not say that the person to whom a show cause notice is given under Sub-section (4) should be given a personal hearing. I am of the opinion that it is not mandatory under this section to give a personal hearing to the assessee. But, it does not mean that no personal hearing should be given to him. It depends on the facts of each case. There may be cases where it may be necessary to hear the assessee and the Deputy Commissioner may give him a personal hearing. Similarly, in certain cases, the assessee may ask for personal hearing and the Deputy Commissioner may give it. But, the assessee is not entitled, as of right, to claim personal hearing under this section.

9. From the decisions of the Supreme Court in Mineral Development Ltd. v. State of Bihar A.I.R. 1960 S.C. 468, Kapur Singh v. Union of India A.I.R. 1960 S.C. 493 and M. P. Industries Ltd. v. Union of India A.I.R. 1966 S.C. 671, the following two propositions emerge while deciding the question as to whether a personal hearing should be given or not in a quasijudicial proceeding. It is held by the Supreme Court that first, giving personal hearing is not necessarily an ingredient of the principles of natural justice and, secondly, whether a personal hearing should be given or not should be decided on the facts of each case.

10. The learned Government Pleader has argued that it is not necessary to give personal hearing to the appellant in a revision under Section 20 of the Act. First, because there is no dispute over the facts of this case and the terms of Section 3 of the Central Sales Tax Act are clear and, secondly, by contrasting the language of Section 20(4) with Section 19(3) and Section 21(4), it becomes apparent that there is no need to give personal hearing to the assessee.

11. We are not as sure as the learned Government Pleader with regard to the facts. In paragraph 3 of the writ petition it is stated by the petitioner appellant that he had purchased coal from Pacha Papaiah and Muppa Narayana Rao of Vijayawada. He has further stated that Pacha Papaiah and Narayana Rao imported the coal from places outside the State of Andhra Pradesh and after the railway wagon reached Vijayawada, he inspected the goods and after satisfying himself about the quality of the goods, purchased them. Though the explanation submitted by him to the Deputy Commissioner is not before us, I find from the order of the Deputy Commissioner that he had specifically stated that he had purchased coal from the coal dealers at Vijayawada and that they had collected sales tax from him and it was the second sale in this State. If the contention of the appellant is to be accepted then the question of purchase in transit by taking transfer of railway receipts does not arise. The Deputy Commissioner did not advert to this contention of the appellant raised in his explanation. Therefore, the facts are not clear and they are also disputed. If so, the applicability of Section 3 of the Central Sales Tax Act cannot be taken for granted to the facts of this case.

12. With regard to the legal contention raised by the learned Government Pleader, I have to state that merely because Sub-section (4) of Section 20 of the Act does not say in terms that a person should be heard, it does not mean that he should not be heard. It is not disputed that the proceedings under Section 20 of the Act are quasi-judicial. As stated by us already the assessee cannot claim as of right a personal hearing under the section, but it does not mean that no personal hearing should be given to him. The difference in the language between Section 19(3) and Section 21(4) and Section 20(4) is apparent. Section 19 deals with appeals. When an appellant prefers an appeal, the appellate authority has to hear him before it could dispose of the appeal. Similarly, Section 21 deals with an appeal to the Appellate Tribunal by an assessee or by the lower tribunals and, therefore, the Tribunal had to dispose of the appeal only after hearing both the parties. But the position is different in the case of revision under Section 20 of the Act. The Board of Revenue or the Deputy Commissioner may suo motu entertain a revision against the orders of the lower tribunals. When they want to enhance the assessment necessarily they have to give an opportunity to the assessee to show cause against the proposed enhancement. Therefore, the difference in the wording between the three sections is due to the difference in the nature of proceedings under those sections.

13. On the facts of this case, I have no hesitation in holding that the Deputy Commissioner should have given a personal hearing to the appellant, though he did not ask for it. His assessment for the year 1967-68 has become final on 15th September, 1968. After nearly four years the Deputy Commissioner wanted to reopen it and enhance the assessment. The appellant in his explanation has stated that he has purchased the goods from the dealers at Vijayawada and his is the second sale. That is a matter to be enquired into by giving a personal hearing to the appellant. The Deputy Commissioner has disposed of the revision more on a question of law that the goods in question were in transit and they were purchased by the appellant by taking transfer of the railway receipts. He should not have decided that question without giving an opportunity to the appellant to be heard in person. Lastly, by allowing the revision the appellant was compelled to pay additional tax which is certainly a burden upon him. Therefore, on the facts of this case, I hold that the Deputy Commissioner should have given a personal hearing to the appellant before disposing of the revision.

14. It is argued by the learned Government Pleader that by remitting the matter to the Deputy Commissioner to give a personal hearing to the appellant, the revision may get barred by limitation under Sub-section (3) of Section 20 of the Act. But, it is not for us to decide that question, for, it does not arise in this case. If that consequence were to follow, the sales tax authorities are themselves to be blamed for it.

15. In the result, I would set aside the order of the learned single Judge in Writ Petition No. 7452 of 1973 and quash the order of the Deputy Commissioner of Commercial Taxes, Guntur, made in G. I. No. 4012/67-68 dated 14th September, 1972 and direct him to give a personal hearing to the appellant, if he still chooses to proceed with the revision proceedings.

Vimadalal, J.

16. I agree.


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