Tandon Stationery Mart vs State of U.P.

Heard Sri Rishi Raj Kapoor, learned counsel for the petitioner and Sri C.B. Tripathi, learned special counsel for the respondents. Present writ petition has been filed against penalty order dated September 10, 2009 passed u/s 54(5) of the U.P. Value Added Tax Act for the assessment year 2008-09.

It is not necessary for us to notice the facts of the case in detail inasmuch as learned counsel for the petitioner has raised a very small controversy which has not been and could not have been disputed by the respondents.

Admittedly, the present writ petition arises out of penalty proceedings. The account books of the petitioner were accepted in the assessment proceedings. A penalty notice purporting to be u/s 54(1), Sl. No. 2, which provides for concealment of particulars of turnover or has deliberate furnishing of inaccurate particulars of such turnover or filing of false tax return, punishable was served on the petitioner. Learned counsel for the petitioner submits that the notice was issued under the aforesaid provision and in view of the fact that the disclosed turnover has been accepted, evidently, the said provision is not attracted. Submission is well-founded. However, a bare perusal of the impugned order would show that after giving the above notice under the aforesaid provision, the penalty order has been framed u/s 54(1), Sl. No. 5. It reads as follows:

Admittedly, no show-cause notice was given under the above-quoted provision. In this view of the matter, no reasonable opportunity to contest the case was afforded to the petitioner by the respondents and as such, the petitioner could not place its defence properly. The penalty order is vitiated as it has been passed without giving a reasonable opportunity of hearing to the petitioner. On this short ground, we find merit in the writ petition. The writ petition succeeds and is allowed and the penalty order dated September 10, 2009 is, hereby, quashed. No order as to costs.