AI Structured Summary
Not yet generated for this judgment
Judgment
Tarun Agarwala, J.—The petitioner is a company registered under the Companies Act and is engaged in the manufacture of craft paper and paper board. The provision of Water (Prevention and Control of Pollution) Cess Act, 1977 is applicable since the petitioner''s industry is an industry specified in Schedule (1) of the said Act. The petitioner is aggrieved by the assessment order dated 25.01.1994 as well as the appellate order dated 01.06.1996 passed under the aforesaid Act for the period 01.12.1992 to 31.12.1993 by which an assessment of Rs. 1,33,061.18 was levied as water cess. According to the petitioner, before passing the assessment order, it was necessary for the Assessing Authority to make an inquiry and further grant an opportunity of hearing as provided u/s. 6 before passing the order. The learned counsel for the petitioner submitted that no inquiry was made nor an opportunity of hearing was given and, consequently, the assessment order as confirmed by the appellate order, being violative of principle of natural justice and being violative of the provision of Section 6 of the Act, was liable to be quashed.
In this regard, the Court has heard Sri Gopal Narain, the learned counsel for the petitioner and Sri Sudhir Kumar, the learned counsel for the respondents.
In order to appreciate the submission of the learned counsel for the petitioner, it would be essential to peruse the provision of Section 5 and 6 of the Act, 1977. For facility, the said provision is extracted hereunder:-
Furnishing of returns. - [(1)] Every person carrying on any specified industry and every local authority, liable to pay the cess u/s 3, shall furnish such returns, in such form, at such intervals and containing such particulars to such officer or authority, as may be prescribed.
[(2)] If a person carrying on any specified industry or a local authority, liable to pay the cess u/s 3, fails to furnish any return under subsection (1), the officer or the authority shall give a notice requiring such person or local authority to furnish such return before such date as may be specified in the notice.
Assessment of cess. - (1) The officer or authority to whom or which the return has been furnished u/s 5 shall, after making or causing to be made such inquiry as he or it thinks fit and after satisfying himself or itself that the particulars stated in the return are correct, by order, assess the amount of cess payable by the concerned person carrying on any specified industry or local authority, as the case may be.
[(1A) If the return has not been furnished to the officer or authority under sub-section (2) of Section 5, he or it shall, after making or causing to be made such inquiry as he or it thinks fit, by order, assess the amount of cess payable by the concerned person carrying on any specified industry or local authority, as the case may be.]
(2) An order of assessment made under sub-section (1) [or sub-section (1A)] shall specify the date within which the cess shall be paid to the State Government.
(3) A copy of each of the order of assessment made under sub-section (1) [or sub-section (1A)] shall be sent to the person or, as the case may be, to the local authority concerned and to the State Government.
(4) The State Government shall, through such of its officers or authorities as may be specified by it in this behalf by notification in the Official Gazette, collect the cess from the person or local authority liable to pay the same and pay the amount so collected to the Central Government in such manner and within such time as may be prescribed.
A perusal of Section 5 of the Act indicates that it is mandatory upon the petitioner to file a return where the petitioner was liable to pay cess as provided u/s. 3 of the Act. Sub rule (2) of Section 5 of the Act provides where a person fails to file any return, the authority concerned would give a notice requiring the person to furnish such return within the prescribed period. Based on the return so filed, the Assessing Authority, will consider the returns and would make such inquiry if required and, thereafter, pass an assessment order. Sub-section (1A) of Section 6 of the Act provides that where no return has been filed inspite of the notice being issued to the person concerned, the authority concerned or the Officer concern will make such inquiry as required and thereafter pass an assessment order.
In the light of the aforesaid provision, it is clear that opportunity is given to the petitioner to file the return as per the provision of the Act in the prescribed proforma. If such return is not filed, a notice is given through which opportunity is given to the person to file the returns. Once a return is filed, the authority concerned is empowered to make an assessment and, while making such assessment, it is not necessary that at that stage an opportunity of hearing is required to be given. However, in case, any further details is required to be obtained or where the Officer thinks that an inquiry is required to be made in order to make an assessment where appropriate information cannot be culled out from the return, in such a situation, the authority concerned will give an appropriate notice.
In the present case, the Court finds that on the basis of the return filed by the petitioner, the assessment order was passed in accordance with the provisions of Section 6 of the Act. The petitioner, being aggrieved, field an appeal which was dismissed and the assessment order was affirmed. Nothing has been stated as to how the assessment order as affirmed by the appellate authority was incorrect or the cess assessed was higher than what was shown in the return. In the light of the aforesaid, the Court does not find any reason to interfere in the impugned order. The writ petition fails and is dismissed.