- (1.) REPORTABLE Dated 1st May, 2013 These writ petitions are decided by this common order because of the reason that issue involved in all these matter is very short which goes to the root of the matter and i.e. non -observance of the principle of natural justice in the matter of passing the impugned orders dated 09.02.2013 in all these matter where the orders of assessment have been made without affording opportunity of hearing to the writ petitioner. This fact, in fact, is not disputed by the respondents themselves because of the reason that from the record it transpires that in the cases, the Assessing Officer, after recording absence of the petitioner in the order -sheet in the detailed assessment order, himself mentioned that the assessee appeared and he was given opportunity of hearing and thereafter the order was passed but the fact which is not in dispute is that petitioner was not given opportunity of hearing. -
(2.) WE are not going in detailed argument of the learned counsel for the petitioner because of the plain and simple reason that, we are of the considered opinion that in these matters liability of crores of rupees has been created by these assessment orders and the manner in which it has been done is highly objectionable. In the assessment under challenge in writ petition W.P.(T) No. 1846 of 2013 admittedly no material was available with the Assessing Officer, reference of which has been given in the impugned order and learned counsel for the petitioner drew our attention to some of the facts which clearly indicate that the Assessing Officer, to determine the highest market value of the commodity of the petitioner, took the average rate of two companies and that was the highest rate of sale of the commodity of the companies and not only this, even the highest rate of the iron ore prescribed by the Indian Bureau of Mines (I.B.M.) was also taken into account whereas according to the petitioner, the petitioner's iron ore's grade is very low and so has been already certified by the Union of India. Learned counsel for the petitioner also drew our attention to the fact that in reply affidavit the deponent, who is Officer -in -Charge and also who is Assessing Officer, clearly admitted that "the petitioner sold the same grade of iron ore for the same period at far lesser price than the price fixed by the I.B.M.", therefore, the Officer -in -Charge -cum -Assessing Officer in reply affidavit admitted that 'X' may be the price fixed by the I.B.M., but the petitioner sold the goods @ X minus Y which is less than the price fixed by the I.B.M. In that situation, the Assessing Officer had no jurisdiction to exercise powers under Section 40(2) read with Section 35(7) of the Jharkhand Value Added Tax Act, 2005 because admittedly the petitioner has shown the actual sale price in the invoice and, therefore, it is not a case of showing less price in the invoice than the sale price received by the petitioner. Be that as it may, the Officer -in -charge also has filed affidavit on legal issues which can be done by an Officer -in - charge, but at the same time such submissions cannot be binding upon the adjudicatory authority, its appellate authority and further appellate authority who are under obligation to decide the legal issues after giving opportunity of hearing to the parties and in accordance with law and are not bound by the stand taken in reply affidavit in writ jurisdiction when that subject matter itself is not under consideration as a legal issue and matter is heard only on preliminary issue like challenge to the show cause notice or violation of principle of natural justice and on those issues only, the matter required to be decided. The reply on legal issues can be only in a case when those contentious issues are to be decided by the Court. In this case, when this Court is of the view that the petitions deserve to be allowed only on the ground of gross violation of principle of natural justice and on the ground of taking into consideration the materials which were not available on record and on the basis of materials which were though available but were not supplied to the petitioner and in assessment proceedings, no reasonable opportunity to meet with the plea of the department was given, then in that situation, any stand taken by the respondents in reply affidavit shall not be binding upon the Assessing Officer, its appellate authority and further appellate authority and, therefore, they are supposed to decide all the issues raised by the petitioner in the proceeding uninfluenced by the stand taken in the reply affidavit and in accordance with law, after giving opportunity of hearing to the writ petitioner.
(3.) SINCE admittedly in these matters opportunity of hearing was not given, the orders dated 09.02.2013 are liable to be set aside and matters are liable to be remanded.;