Page No.# 1/4 GAHC010067072024 2025:GAU-AS:7392 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1918/2024 M/S ASSAM AUTO SPARES A PROPRIETORSHIP FIRM HAVING ITS OFFICE AT BARPETA ROAD, BARPETA- 781315, ASSAM. REPRESENTED BY ITS PROPRIETOR, SRI AMIT KUMAR TULSHAN, RESIDENT OF BARPETA ROAD, ASSAM- 781315. VERSUS THE STATE OF ASSAM AND 2 ORS. REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, FINANCE AND TAXATION DEPARTMENT, BLOCK-F, ASSAM SECRETARIAT, DISPUR, GUWAHATI- 781006. 2:THE COMMISSIONER OF STATE TAXES ASSAM KAR BHAWAN G.S. ROAD DISPUR GUWAHATI- 781006. 3:THE DEPUTY COMMISSIONER OF STATE TAXES BARPETA ROAD-1 GUWAHATI ZONE-B ASSAM KAR BHAWAN G.S. ROAD DISPUR Page No.# 2/4 GUWAHATI- 781006 Advocate for the Petitioner : DR ANKIT TODI, MS. R JUGLI,MR A NATH Advocate for the Respondent : SC, FINANCE AND TAXATION, BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY ORDER 05.06.2025 1. Heard Mr. A. Todi, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned Additional Advocate General, Assam representing the State GST. 2. The case of the petitioner is that the Deputy Commissioner, Sales Tax, Guwahati Zone-B, Assam had issued a show cause notice on 30.09.2023. The petitioner claims to have submitted the reply to the show cause notice online on 20.12.2023 under acknowledgment No. ARN ZD18 1223033093T. However, on 29.12.2023, the impugned order in original was passed confirming the levy of taxes and it was observed that the petitioner had failed to respond to the show cause notice and accordingly, an order of attachment was also passed on the same date i.e. on 29.12.2023. 3. The limited ground urged in this writ petition is that though the petitioner had submitted the reply, however, while passing the impugned order, it is categorically recorded that the petitioner has not filed any reply to the aforesaid show cause notice. 4. The respondent authority has filed an affidavit inter alia stating that they have received the reply to the show cause notice and accordingly applied their mind and passed the impugned order and therefore, the writ petition is liable to be Page No.# 3/4 dismissed inasmuch as the petitioner is having an efficacious alternative remedy of appeal. 5. This court has given anxious consideration to the submissions advanced by the learned counsel for the parties. Also perused the show cause notice dated 30.09.2023 and impugned order dated 29.12.2023 as well as reply to the show cause notice. 6. In the impugned order, the following stand was recorded:- “The tax payer has not replied or contested the notice, deemed agreed with the terms of the notice”. 7. Thus, the impugned order was passed based on a presumption that as the Assesee has not filed reply, therefore, it is deemed to be an agreement with the show cause notice. However, in the affidavit, the respondent has taken a stand that they have received the reply to the show cause notice filed by the petitioner and accordingly applied their mind to the said reply to the show cause notice and it was found to be “not satisfactory”. However, it is clear from the impugned order that while making the determination, the authority did not record or apply its mind to the reply to the show cause notice filed by the petitioner, rather the impugned order is solely based on the presumption that assesee has not filed reply to the show cause notice and therefore, it is an admission on this part. Both of such contention cannot simultaneously be accepted inasmuch as this Court is only to look into how and in what manner, the impugned decision was taken. 8. The material on record leaves no room of doubt in the mind of the Court that though the petitioner filed reply to the show cause notice through online mode on 20.12.2023 under acknowledgment No. ARN ZD18 1223033093T and that, even after receipt of such reply, the impugned decision was passed based in the premises that the petitioner did not reply to such show cause notice and that Page No.# 4/4 assesee agreed to the allegation made in the show cause. Therefore, the stand of the respondent in the affidavit, to the effect that they have considered the reply of the petitioner to the show cause, is not sustainable inasmuch as the respondents by way of filing affidavit cannot change their position from the reason recorded in the impugned order dated 29.12.2023. 9. Accordingly, in the given facts of the present case, the impugned order dated 29.12.2023 and subsequent attachment order dated 29.12.2023 are set aside and quashed and the matter is relegated to the competent authority i.e. the respondent No. 3 to take a decision afresh on the basis of the reply to the show cause notice dated 20.12.2023 and as per procedure prescribed under the Act, in question. 10. Accordingly, this writ petition stands disposed of. Parties to bear their own cost. JUDGE Comparing Assistant