- (1.) This order shall dispose of CWP Nos. 12838 to 12841, 12847, 12881 and 12851 of 2014, as according to the learned counsel for the petitioner, the issue raised in all these cases is identical. However, the facts have been taken from CWP No. 12839 of 2014. Prayer made in CWP No. 12839 of 2014 is for issuance of a writ in the nature of mandamus to declare provisions of section 29(7) of the Punjab Value Added Tax Act, 2005 (in short, "the PVAT Act") as unconstitutional, offending article 19(1)(g) of the Constitution of India and illegal and not enforceable being violative of the principles of natural justice. Further prayer has been made for quashing the order dated January 29, 2014, annexure P2 passed by respondent No. 2-Excise and Taxation Commissioner, Punjab granting permission to amend assessment order for the assessment year 2009-10 and consequential notices dated February 5, 2014 and June 17, 2014, annexures P3 and P11, respectively, issued by respondent No. 3-Assistant Excise and Taxation Commissioner.
(2.) A few facts relevant for the decision of the controversy involved as narrated in CWP No. 12839 of 2014 may be noticed. The petitioner-firm besides manufacturing is engaged in trading of iron and steel on wholesale basis for past many years. It is registered as taxable person under the PVAT Act and also under the Central Sales Tax Act, 1956. During the year 2009-10, the petitioner-firm made sates in the State of Punjab amounting to Rs. 31,60,41,432. It filed all statutory returns and furnished details of purchases and sales with the returns. It had brought forward Investment Tax Credit (TTC) amounting to Rs. 15,306. It made purchases amounting to Rs. 31,52,44,606 against VAT invoices and earned ITC amounting to Rs. 1,26,19,475 in respect of the aforestated purchases. The assessee also deposited VAT amounting to Rs. 50,930. The petitioner-firm had availability of ITC amounting to Rs. 1,26,85,711 and output liability was Rs. 1,26,41,657. The ITC being more than the output tax liability, no further payment was warranted and ITC worth Rs. 45,454 was carried forward to the assessment year 2010-11. Assessment for the year 2009-10 was completed on May 24, 2013, annexure A1 after examination of accounts, verification of purchases and declarations and returns were accepted. According to the petitioner, respondent No: 3 who had neither passed the assessment order nor had ever examined the account books, etc., unilaterally moved respondent No. 2 for grant of permission to amend the assessment orders already passed and the said permission was granted by respondent No. 2 vide order dated January 29, 2014 without affording an opportunity of hearing to the petitioner. Respondent No. 3 issued consequential notice dated February 5, 2014 and June 17, 2014, annexures P3 and P11. On February 22, 2014, the petitioner made an application to respondent No. 3 for supply of the copy of the order passed by respondent No. 2. The petitioner made further applications on March 7, 2014 and March 13, 2014 for supply the copy of the orders. Ultimately common order passed under section 29(7) of the Act was sent to the petitioner vide memo dated March 24, 2014, annexure P2. The petitioner-firm along with Jullundur Engineering Co. filed common Civil Writ Petition No. 6152 of 2014 in this court for quashing the impugned notice dated February 5, 2014. The writ petition was disposed of vide order dated April 1, 2014 relegating the petitioner to seek the remedy of appeal. On April 21, 2014, the petitioner filed separate appeal for each assessment year before the Tribunal against the order of the Commissioner passed under section 29(7) of the PVAT Act. Since the previous Chairman had retired in February 2014 and there was no other sitting member, remedy of appeal was not effective. Respondent No. 3 issued notice dated June 17, 2014 requiring the petitioner to produce books of account along with original sale and purchase invoice. The petitioner filed preliminary objection to the notices, annexures P3 and P11. Respondent No. 3 is taking steps for finalisation of the reassessment proceedings. Hence the petitioner is before this court through the present writ petition.
(3.) The learned counsel for the petitioner submitted that the Legislature while enacting section 29(7) of the PVAT Act had empowered the designated officer to amend an assessment order made under sub-section (2) or (3) of section 29 of the PVAT Act if he discovers under-assessment of tax payable by a person for the reason that such person has committed fraud or wilful neglect or has misrepresented facts or a part of the turnover has escaped assessment. According to the learned counsel, the same can be done with the prior permission of the Commissioner. However, the provision is unreasonable, unconstitutional and ultra vires for the reason that no opportunity of hearing has been provided before granting permission by the Commissioner. As a consequence, the order dated January 29, 2014, annexure P2 passed by the Excise and Taxation Commissioner granting permission to amend the assessment order for the year 2009-10 and consequently notices dated February 5, 2014 and June 17, 2014, annexure P3 and P11, respectively issued by the Assistant Excise and Taxation Commissioner are also bad. In support of the submissions, learned counsel for the petitioner referred to judgments in Sahara India (Firm) v. Commissioner of Income-tax, 2007 289 ITR 473 , Rajesh Kumar v. Deputy Commissioner of Income-tax, 2006 287 ITR 91, C.B. Gautam v. Union of India, 1993 199 ITR 530, Automotive Tyre Manufacturers Association v. Designated Officer, 2011 263 ELT 481, Manaktala Chemicals Pvt. Limited v. State of U. P., 2007 5 VST 284 and J.T. (India) Exports v. Union of India,2003 132 STC 22.;