Kay Kay Industrial Corporation vs State of Haryana and Others

Hemant Gupta, J.—The petitioner challenges the order passed by the Haryana Tax Tribunal on April 28, 2010 (annexure P6) and the order in review dated June 17, 2011 (annexure P8) whereby the review petition for the review of the earlier order dated April 28, 2010, was dismissed. The assessing officer framed assessment under the Haryana General Sales Tax Act, 1973 (in short, "the Act") and the Central Sales Tax Act, 1956 (in short, "the CST Act") on April 10, 2002. The appeal against the said order, at the instance of the assessee, was accepted and the matter was remanded to the assessing officer for re-determination of the issues vide order dated August 2, 2006.

On remand, the assessing officer, Gurgaon, framed assessment on March 28, 2007, imposing penalty of Rs. 1,030 u/s 46 of the Act but allowed the other contentions of the writ petitioner. The revisional authority, i.e., Deputy Excise and Taxation Commissioner took up the matter suo motu in respect of the order passed by the assessing officer on March 28, 2007. The revisional authority set aside the said order of the assessing officer by verbatim reproducing the order dated April 10, 2002 passed by the said officer in its revisional order dated January 14, 2008.

Aggrieved against the order passed by the revisional authority, the petitioner filed an appeal before the Haryana Tax Tribunal which has since been accepted on April 28, 2010 and the matter remanded to the revisional authority by observing as under :

In these circumstances, we remand the case to the revisional authority for looking into the matter afresh and passing the judgment after application of mind and if he feels that some prejudice has been caused to the Revenue and there are illegalities and improprieties on the basis of order, he may remand the case to the Assessing Authority afresh after pointing out the illegalities in the order. Appeal is disposed of accordingly."

The petitioner thereafter filed a review petition which has since been dismissed on June 17, 2011. Still aggrieved, the petitioner is in writ petition before this court.

The learned counsel for the petitioner has vehemently argued that the revisional authority has committed patent illegality in the order dated January 14, 2008 whereas the revisional authority was to find out illegalities and improprieties in the order passed by the assessing officer. Since the Tribunal has recorded that the revisional authority has not acted fairly, the remand to the revisional authority is not proper and justified.

We do not find any merit in the present petition challenging the order passed by the Tribunal on April 28, 2010 and the order in review petition dated June 17, 2011.

The order passed by the revisional authority was set aside by the Tribunal for the reason that the revisional authority has not given proper opportunity of hearing to the petitioner and there is no application of mind by the revisional authority. Having recorded such finding, the proper course for the Tribunal was to remand the matter to the revisional authority. Mere fact that the order has been set aide by the Tribunal, does not render the exercise of jurisdiction u/s 40 of the Act itself as void. It is for the revisional authority to consider the issues raised, the contentions of the parties and to return a finding, whether the order of assessing officer dated March 28, 2007 suffers from patent illegalities or irregularities in terms of section 40 of the Act but to say that the Tribunal could not remand the matter to the revisional authority, cannot be accepted. Therefore, the present petition is dismissed as there is no error in the order passed by the Tribunal.