Rajendra Prasad Narendra Kumar vs Additional Commissioner (Grade-I), Commercial Tax and Another

By means of the present writ petition the petitioner has challenged the order dated April 16, 2010 passed by the Additional Commissioner (Grade-I), Commercial Tax, Jhansi Zone, Jhansi, respondent No. 1, granting permission u/s 21(2) of the U.P. Trade Tax Act, 1948, hereinafter referred to as "the Act", for assessment of entry tax on the kerosene oil. Briefly stated the facts giving rise to the present petition are as follows:

The petitioner is a registered partnership firm and is engaged in the distribution of kerosene oil. It is a registered dealer under the Act. It purchases kerosene oil from M/s. Bharat Petroleum Corporation Limited which is supplied by the petitioner-firm to dealers of public distribution system/fair price shop dealers. It is not engaged in sale and purchase of kerosene oil meant for sale in the open market. For the assessment year 2004-05, the assessing officer, namely, the Assistant Commissioner, Trade Tax, Khand-II, Banda vide order dated March 29, 2006 after being satisfied by the contention of the petitioner held that the petitioner is not liable for entry tax. However, thereafter a notice u/s 21(2) of the Act was issued to the petitioner on July 4, 2009. The petitioner submitted its reply along with a certificate issued by M/s. Bharat Petroleum Corporation Ltd. dated March 18, 2009 and an affidavit of Sri Narendra Kumar Jain, a partner of the firm stating therein that the petitioner''s firm is carrying only business of kerosene oil meant for supply through public distribution system. Thereafter respondent No. 1 vide order dated August 10, 2009 refused to grant permission u/s 21(2) of the Act. However, respondent No. 1 issued a notice dated March 26, 2010 calling on the petitioner to show cause as to why the permission u/s 21(2) of the Act be not granted and fixed April 2, 2010 for appearance and filing reply. The petitioner could not file its reply on April 2, 2004 as the same was a public holiday on account of Good Friday and was under the bona fide belief that further opportunity would be given to it for reply but without affording any opportunity vide the impugned order dated April 16, 2010 amended the order dated August 6, 2009 and granted permission u/s 21(2) of the Act for assessment of entry tax on kerosene oil.

We have heard Sri Rakesh Kumar, learned counsel for the petitioner and Sri C.B. Tripathi, learned special counsel for the respondents.

The learned counsel for the petitioner submitted that respondent No. 1 however, accepted the contention of the petitioner on first count and vide order dated August 6, 2009 refused to grant permission u/s 21(2) of the Act but by ex parte order dated April 16, 2010 granted permission to reopen the matter u/s 21(2) of the Act ignoring the documents filed earlier by the petitioner.

Sri C.B. Tripathi, learned special counsel for the respondents, submitted all this matter can be gone into by respondent No. 2 in the proceedings u/s 21(2) of the Act and, therefore, the order dated April 16, 2010 need not be interfered with.

We have given our thoughtful consideration to the various plea raised by the learned counsel for the parties. We find that while passing the order dated August 6, 2009 respondent No. 1 was satisfied with the reply submitted by the petitioner and refused to grant permission to reopen the matter u/s 21(2) of the Act even though vide order dated April 16, 2010 ex parte he has granted permission to reopen the matter u/s 21(2) of the Act without affording any reasonable opportunity to the petitioner to file its reply. Since the impugned order dated April 16, 2010 has been passed without affording opportunity to the petitioner to submit its reply it is against the principles of natural justice. In this view of the matter as once respondent No. 1 has refused to grant permission to reopen the matter u/s 21(2) of the Act and further amended his order and passed the impugned order without hearing the petitioner, the impugned order dated April 16, 2010 cannot be sustained. Respondent No. 1 is directed to afford opportunity to the petitioner to submit its reply and then pass an appropriate order in accordance with law. The writ petition succeeds and is allowed.