NEELAM GANDHI Vs. STATE OF M P

JUDGEMENT

(1.) In view of the common question of law involved in this batch of the writ appeals preferred under Section 2(1) of the M. P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, they were heard analogously and are disposed of by a singular order. For the sake of clarity and convenience, the facts in W. P. No. 1628/2008 which has given rise to W. A. No. 324/2009 are adumbrated herein.

(2.) The expose of facts is that the appellant is a cable-operator and he was issued a show cause notice under Section 4-C of the M. P. Entertainments Duty and Advertise- ment Tax Act, 1936 (in short 'the Act') read with Rules 9 and 11 of the M. P. Cable Tele- visions Network (Exhibition) Rules, 1999 (in short 'the 1999 Rules'). In the notice of the show-cause, the petitioner was called upon to file a reply why he should not be penalised for evading duty and tax because of conceal- ment of facts which pertain to furnishing of correct number of cable connections. As is demonstrable, the appellant-petitioner, by letter dated 22-11 -2007, sought a week's time to file the reply but as no reply was filed despite extension of time, the respondent-authorities, by letter dated 24-12-2007, called upon him to deposit the amount of penalty as adjudged failing which the recovery would be effected as per Section 5(B) of the Act. The said communication was assailed invoking the extraordinary jurisdiction of this Court.

(3.) Before the learned single Judge, it was contended that before the assessment of the duty or tax, it was incumbent upon the authority to have afforded an opportunity of hearing to the petitioner, but without taking recourse to such procedure, he fastened the liability and issued a show-cause notice calling upon him to deposit the amount. It was further urged that the show-cause notice was confined only to the question of penalty though Section 4-C of the Act mandates grant of opportunity of being heard before the assessment is framed. It was also propounded that the show-cause notice only pertained to penalty which was the fall-out of the best assessment judgment which enables the authority to reach a conclusion that there has been evasion of tax or duty thereby empowering it to proceed with the imposition of penalty.