Allahabad High Court
Narendra Nath Chaturvedi vs State Of U.P. Thorugh Secy. Tax And ... on 25 July, 2022
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- WRIT - C No. - 1001631 of 2011
Petitioner :- Narendra Nath Chaturvedi
Respondent :- State Of U.P. Thorugh Secy. Tax And Registration Lucknow
Counsel for Petitioner :- Rajeev Srivastava
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioner and learned Standing Counsel on behalf of the respondents.
The present petition has been filed challenging the order dated 26.02.2011 (Annexure - 1) whereby the petitioner has been directed to pay an amount of Rs.34,399.50/-. Rs.51,620.50/- was found due and payable by the petitioner out of which after deducting Rs.17,221/-, the petitioner was directed to pay an amount of 34,399.50/- failing which it was threatened that the same shall be recovered in accordance with law.
Submission of learned counsel for the petitioner is that prior to this order an order came to be passed on 22.09.2009 whereby the amount payable by the petitioner was assessed at Rs.51,620.50/- and the petitioner was directed to pay the said amount. Against the said order, an appeal was preferred which was decided on 24.11.2010 (Annexure - 5) wherein the appellate authority was of the view that the order has been passed without following the mandatory provision as prescribed under Section 12 of the U.P. Entertainments and Betting Tax Act, 1979 (hereinafter referred to as 'the Act'). The appeal was disposed off with direction to pass an appropriate order after observing the mandatory condition of Section 12 of the Act. Subsequent to the said order, the impugned order has been passed once again on 26.02.2011 assessing the amount payable by the petitioner at Rs.51,620.50/- out of which the petitioner has paid Rs.17,221/- being 1/3rd of the amount during the pendency of the appeal, thus, the petitioner was required to pay a sum of Rs.34,399.50/-.
Submission of learned counsel for the petitioner is that Section 12 of the Act specifically provides for giving an opportunity of being heard prior to passing of an order. He argues that no such notice has ever been issued to the petitioner either prior to passing of the order dated 22.09.2009 or the order dated 26.02.2011, thus, the order is contrary to the mandate of Section 12 of the Act as well as it violates the specific direction given by the appellate authority vide its order dated 24.11.2010.
In the counter affidavit filed by the State, there is no mention of any notice been given to the petitioner prior to passing of the impugned order, however, it is argued at the Bar that an appeal lies under Section 12(2) of the Act and thus, the petitioner should be relegated to the alternative remedy of appeal.
Learned counsel for the petitioner argues that it is well settled that the alternative remedy will not be a ground in the event the order is passed in violation of principles of natural justice or contrary to the mandate of law. He places reliance on the judgment of the Hon'ble Supreme Court in the case of Whirlpool Corporation v. Registrar of Trademarks, Mumbai and Ors. - (1998) 8 SCC 1.
On perusal of the material on record and the arguments as raised at the Bar it is clear that no notice was given to the petitioner prior to the passing of the order dated 26.02.2011; in fact, the appellate authority had observed this discrepancy and had directed the respondents to pass an order in consonance with the mandate of Section 12 of the Act, which has again not been followed while passing the order dated 26.02.2011.
Section 12 of the Act on its plain reading clearly provides that before passing of the order, a reasonable opportunity of being heard is to be accorded. Clearly, the said opportunity has not been accorded to the petitioner. Thus, on the ground of not following the mandatory requirement of Section 12 of the Act as well as the order dated 26.02.2011 (Annexure - 1) being contrary to the principles of natural justice, is not sustainable and is set aside giving liberty to the respondents to pass fresh orders in accordance with law after observing the mandatory conditions as laid down in Section 12 of the Act.
The writ petition is allowed in above terms.
Order Date :- 25.7.2022
nishant
