RAJEEV KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) BY means of this writ petition, the petitioner has prayed for quashing the show cause notice dated 30.1.2014 and the charge sheet dated 24.4.2013 with a further prayer to direct the opposite parties to consider the case of the petitioner for promotion on the post of Additional Commissioner Grade -I whenever the Departmental Promotion Committee is held for the said post.

(2.) THE facts, in nutshell, are that petitioner was initially appointed on the post of Sales Tax Officer through Public Service Commission and subsequently on 24.2.1998 he was promoted to the post of Assistant Commissioner. It is stated that when the petitioner was posted as Deputy Commissioner, Noida, an assessment order was passed by the assessing authority in respect of M/s Kapil Kumar and Brother for the year 2003 -2004 on 5.10.2005 thereby rejecting the books of account of the assessee and assessed the net evaded taxable turnover as Rs.2,00,00,000/ - and imposed the tax of Rs.9,80,000/ -. Feeling aggrieved with the said order, the assessee filed the first appeal before the Joint Commissioner (Appeal) IInd, Noida, who vide order dated 5.12.2005 reduced the quantum of tax assessed by the assessing officer to Rs.2,07,000/ -. Aggrieved by the said order, both the assessee and the department filed second appeals bearing nos.10 of 2006 and 136 of 2006 respectively before the Member Tribunal, Noida, who decided both the appeals by a composite order dated 3.11.2006, thereby enhancing the evaded taxable turnover fixed by the first appellate authority to Rs,1,53,01,980/ - and imposed the tax of Rs.7,54,327/ -. In the meantime, on 23.11.2006 petitioner was promoted to the post of Deputy Commissioner and posted as State Representative, Noida. Feeling aggrieved with the second appellate order, the assessee filed a revision before this Court, which was dismissed by this Court vide judgment and order dated 9.4.2007. On 13.10.2008 petitioner was promoted to the post of Joint Commissioner. On 26.5.2010, the order of the High Court dated 9.4.2007 was referred to take necessary action against the erring officers responsible for not filing the revision in the aforesaid matter. In pursuance of the aforesaid direction, charge sheet was issued to Mr. Deep Chandra Chaturvedi, the then assessing authority on 28.9.2011. Proceedings were also initiated against the first appellate authority and since he had retired by that time, the proceedings were dropped by the Commissioner on 3.10.2011. On 4.10.2011 notice was also issued to the petitioner, who happened to be the Deputy Commissioner and State Representative at that time, to explain as to why he faltered in his responsibility to file revision in the aforesaid case. On the said date i.e. 4.10.2011 the Commissioner, Commercial Taxes also wrote a letter to the Chairman Tribunal, Commercial Taxes, Lucknow to take action against the erring Member Tribunal, who had passed the second appellate order dated 3.11.2006. On 23.7.2012, petitioner replied to the notice stating therein that in the instant case there was no point of law involved, as such there was no need to file revision. Feeling dissatisfied with the reply of the petitioner, the Commissioner, Commercial Taxes vide letter dated 7.8.20102 asked the Additional Commissioner, Commercial Taxes, Noida to prepare charge sheet against the petitioner and sent it for further action, pursuant to which the Additional Commissioner by means of letter dated 11.9.2012 sent the draft charge sheet prepared against the petitioner to the Commissioner. Thereafter, the Commissioner vide letter dated 24.9.2012 sent the draft charge sheet to the Principal Secretary, Kar Evam Nibandhan along with the recommendation of suspension of the petitioner for his alleged inaction and thereby causing substantial revenue loss to the department. In the meantime, petitioner made a representation to the Government on 18.8.2012 to plead his innocence by stating that in the case referred, there was no question of law involved. On 15.2.2013 the proposed charge sheet was sent to the Government for approval and thereafter the Government directed the Commissioner that points raised by the petitioner in his representation dated 18.8.2012 be examined afresh. In pursuance to the said direction, the Commissioner vide letter dated 28.3.2013 replied to the Government in regard to consideration of the points mentioned in the representation of the petitioner and thereafter on 1.4.2013 the Commissioner wrote a letter to the Government explaining as to why action should not be taken against the petitioner in the case referred, pursuant to which the Principal Secretary sent the charge sheet for approval to the competent authority on 3.4.2013 and in turn the competent authority approved the proposal of the department on 15.4.2013. In pursuance to the aforesaid approval, charge sheet was issued to the petitioner on 24.4.2013 by appointing Additional Commissioner, Commercial Taxes, Gautam Budha Nagar as enquiry officer and the charge sheet was served upon the petitioner on 30.4.2013. Aggrieved against the said charge sheet, the present writ petition has been filed and this Court vide order dated 9.5.2013 directed the Principal Secretary to file his personal affidavit. On 23.9.2013, the enquiry officer submitted the enquiry report exonerating the petitioner from all the charges. Since the petitioner has been exonerated from all the charges framed against him without considering the crucial aspect of the matter, the disciplinary authority issued notice dated 30.1.2014 by recording reasons for disagreement with the enquiry officer and the petitioner has been given 15 days time to file reply. It is stated that petitioner instead of replying to the said notice, raised some insignificant questions to explain the perverse/inconsistent findings of fact which became question of law. On 7.2.2014, the Government again advised the petitioner to file an explanation in respect of the notice dated 30.1.2014 incorporating the views in respect of perversity/inconsistency of facts, but the petitioner has not replied to the said notice till date and challenged the notice dated 30.1.2014 by way of amendment in the writ petition.

(3.) SUBMISSION of learned counsel for the petitioner is that judgment of the High Court dated 9.4.2007 has been misinterpreted by the opposite parties and on the basis of which the disciplinary proceedings have been initiated against the petitioner. He has further submitted that this Court has come to the conclusion that the Tribunal has rightly held that the assessee is liable to tax, meaning thereby that the finding recorded by the Trade Tax Tribunal has been approved. The petitioner was neither the assessing authority nor the appellate authority nor Member of the Tribunal and he was only assistant and was supposed to assist before the Tribunal on behalf of the department. The sole charge against the petitioner is that he has not placed the matter before the legal committee on account of which no decision could be taken to file the revision. It has also been submitted that judgment was rendered by the High Court on 9.4.2007 and the matter remained pending and nothing was done till 2011. On 4.10.2011 show cause notice was issued to the petitioner and prior to that petitioner was promoted on the post of Deputy Commissioner and even after issuance of show cause notice, he was promoted to the post of Additional Commissioner Grade -II on 20.6.2012. It is submitted that uptill 2011 nothing was done in the matter though judgment of High Court was received by the department in the year 2007 itself. If the department was of the view that revision was required to be filed, then a time barred revision could have been filed before the High Court, which was never done. Revision filed by the assessee in the year 2006 was decided in 2007 and there has not been much delay at that time and it was incumbent upon the Joint Commissioner (Executive) Trade Tax, Noida to have filed the revision in the High Court challenging the order of the Tribunal along with application for condonation of delay. The findings recorded by the High Court are sought to be relied upon by the opposite parties now, meaning thereby that they were in the knowledge of the same since 2007, but no effort was ever made to file the revision along with an application for condonation of delay. Non -filing of the revision makes the Joint Commissioner (Executive) Trade Tax responsible as the ultimate authority under the Trade Tax Manual is of the Joint Commissioner, Trade Tax to file the revision, where no question of law was involved. If no question of law was involved, then the petitioner cannot be made responsible for not placing the matter before the legal committee. It has further been submitted that even if it is accepted that the petitioner was responsible for not placing the matter before the legal committee, then during the course of enquiry and prior to that when show cause notice was issued to the petitioner, he requested by means of various letters to supply him the copy of the proceedings before the legal committee and other relevant documents, but no such documents were ever supplied to him. The petitioner submitted his tentative reply and on that basis, the enquiry proceeded and ultimately he was exonerated in the enquiry. The enquiry officer also made efforts to get those documents, but they were never presented before him in spite of specific direction. Learned counsel has submitted that only from the proceedings before the legal committee, it can be proved as to whether the petitioner has presented the matter before the legal committee or not. According to the learned counsel, probably order of the High Court could not be placed before the concerned authority and no record is available with opposite parties in this respect and in absence of any record, the charge against the petitioner is not possible to be proved under law, but in spite of that the Government has issued the show cause notice disagreeing with the finding of the enquiry officer on baseless grounds merely on the basis of assumption. Learned counsel has further submitted that preponderance of probabilities does not mean that the charge can be proved without any basis or without any documentary evidence. It is submitted that before the enquiry officer, no such record was produced on the basis of which it could be inferred that the matter was not placed before the legal committee by the petitioner. The proceedings of the legal committee are not available and neither the original judgment on which endorsement is to be made in respect of the final decision is available. Presumption has been drawn only on the basis of the fact that there is no entry in SR -9 Register in regard to filing or non -filing of the revision though it has been submitted that entry has to be made in SR -9 Register as a consequence of the proceedings drawn before the legal committee. Whether the proceedings have been drawn before the legal committee, is not evident from the record and neither any such evidence has been placed before the enquiry officer nor before this Court to establish the same. Therefore, the charge levelled against the petitioner that he did not file the revision on behalf of the department, is only baseless and no punishment can be awarded on the basis of the aforesaid decision. It is submitted that the High Court has agreed with the finding of the Tribunal and the Commissioner, Trade Tax has also issued circulars on 22.6.2009 and 29.3.2010, wherein it has been said that frivolous revisions should not be filed and only in very strong cases, the revision should be filed. If the estimation of turnover is a question of fact, then the said point cannot be a law point before the High Court to file the revision.