M/S J.J. Battery vs State Of Chhattisgarh
2022 Latest Caselaw 7069 Chatt

                                         1


                                                                          NAFR
              HIGH COURT OF CHHATTISGARH AT BILASPUR
                             WPT No. 243 of 2022
      M/s J.J. Battery Proprietor- Javed Musani, S/o Late Shri Abdul Vahid
       Musani, Aged About 36 Years, R/o H. No. 1676, Tiwari Dairy Gali,
       Near Jhanda Chowk, Sector-2, Shivanand Nagar, Khamtarai Raipur,
       District : Raipur, Chhattisgarh
                                                               ---- Petitioner
                                       Versus
     1. State Of Chhattisgarh Through Its Principal Secretary, Finance And
        Planning Department (Commercial Tax Department) Mantralaya,
        Mahanadi Bhawan, Naya Raipur, District : Raipur, Chhattisgarh
     2. The Commissioner Commercial Tax Department, Government Of
        Chhattisgarh. G. S. T. Bhavan Sector-19 North Block Atal Nagar
        Naya Raipur Chhattisgarh.
     3. The Divisional Deputy Commissioner Of Commercial Tax Division-2,
        Raipur Vanijyik Kar Bhavan, Civil Lines, Raipur Chhattisgarh.
     4. The Commercial Tax Officer Circle-6, Vanijyik Kar Bhavan, Civil
        Lines, Raipur Chhattisgarh.
                                                       ---- Respondent

For Petitioner : Mr. Mool Chand Jain, Advocate For State : Mr. Chandresh Shrivastava, Addl. A.G.

Hon'ble Shri Justice P. Sam Koshy Order on Board

24/11/2022

1. Aggrieved by the order Annexure P/4 dated 10.12.2018 passed under Section 22(1) of the Chhattisgarh VAT Act, 2005 and also Annexure P/5 dated 09.12.2021 passed by the Revisional Authority under Section 49(1) of the Chhattisgarh VAT Act the instant writ petition has been filed.

2. The primary contention of the petitioner is that two interim orders are bad in law for the reason that the order of reassessment has been passed without there being an assessment order as is otherwise required under Section 21(2). That without there being an assessment order the reassessment order has been passed by the authorities concerned, which was assailed by the applicant before th

Revisional Authority and the Revisional Authority has also rejected the same leading to the filing of the present writ petition.

3. Learned counsel for the petitioner referred to two of the recent decisions of the Division Bench of this Court on the subject matter i.e. one which was decided in WA No. 687/2018 (State of Chhattisgarh & others v. M/s. Tata Teleservices Limited) and other connected appeals decided on 18.08.2022. These appeal by the State were against the order passed by the Single Bench in WPT No. 79/2017 (M/s. Tata Teleservices Limited v. State of Chhattisgarh & others) decided on 20.03.2018. In the writ petition the Writ Court in an identical set of facts had held the order of reassessment to be bad when the order of assessment itself was not issued by the respondents. This was subjected to challenge before the Division Bench and the Division Bench affirming the same rejected the three appeals filed by the State. The Division Bench in its order has in paragraphs No. 23 to 26 & 29 has held as under:

"23. Section 22(1) of the VAT Act, amongst others, provides that where the assessment or re-assessment of a dealer has been made under the VAT Act and for any reason any sale or purchase of goods liable to be taxed under the VAT Act or the Act repealed by this Act during any period, (a) has been under assessed or has escaped assessment, or (b) has been assessed at a lower rate or (c) any wrong deduction has been made while making the assessment, or (d) a rebate of input tax has incorrectly been allowed while making the assessment, or (e) is rendered erroneous and prejudicial to the interest of revenue consequent to or in the light of any judgment or order of any Court or tribunal which has become final, the Commissioner may at any time within a period of five calendar years from the date of order of assessment or from the date of judgment or order of any court or tribunal proceed in such manner as may be prescribed, to assess or re-assess, as the case may be the tax payable by such dealer after making such enquiry as he considers necessary, and assess or reassess to tax.

24. As the word "order" appearing in Section 22(1) of the VAT Act is not defined in the VAT Act, the learned Single Judge took the aid of definition of "order" in Section 2(14) of the Civil Procedure Code, 1908 as also dictionary meaning of the word "order" in Black's Law Dictionary (Eighth Edition) to come to the conclusion that the words "order of assessment" employed in Section 22(1) of the VAT Act clearly denotes that there must be a formal adjudication by the assessing officer after taking into account the return and statutory compliances and the documents furnished by the petitioner in contradistinction to Section 21(2) which is a deemed assessment.

25. It was held by the learned Single Judge that the use of the words "from the date of order of assessment" appearing in Section 22(1) of the VAT Act clearly indicates that the original assessment order has to be in existence prior to exercising the power of reassessment. At paragraph 34 of the judgment under assailment, it was observed as follows :

"34. Thus, in sum and substance, in order to invoke jurisdiction under Section 22(1) of the VAT Act or to initiate proceedings for reassessment there must be an order of assessment duly passed by the assessing officer and it must be in existence as a condition precedent to invoke Section 22(1) and the limitation prescribed is five calendar years from the date of commencement of such proceedings, whereas the deemed assessment order under Section 21(2) is only reassessable under Section 21(3) of the VAT Act within one calendar year from such year. In case there is no order of assessment passed under Section 21(7) of the VAT Act, it cannot be subject to reassessment proceeding under Section 22(1) of the VAT Act."

26. Learned Single Judge at paragraphs 36 and 37 observed as follows :

"36. Reverting to the facts of the present case, after having noticed the judgment of the Supreme Court in Filter Co.'s case (supra), it is quite vivid that in the instant case, the matter was heard by the assessing officer up to 18-2-2015 after having issued notices on 12-5-2014, but no order of assessment was passed under Section 21(7) of the VAT Act, though original assessment proceedings were initiated by issuance of notice on 12-5-2014 and matter was heard time to time by the assessing officer resulting into deemed assessment by virtue of the provisions contained in Section 21(2) of the VAT Act which was reassessable under Section 21(3) of the VAT Act within a period of one calendar year at the instance of the Commissioner on selection being made by him. Thus, the jurisdictional fact and condition precedent for invoking Section 22(1) of the VAT Act i.e. the order of assessment was not in existence on the date of issuing notice for reassessment under Section 22(1) of the VAT Act. Therefore, the learned assessing officer was jurisdiction-less to initiate proceeding for reassessment under Section 22(1) of the VAT Act and the order of reassessment ultimately passed is without jurisdiction and without authority of law and dehors the provisions contained in Section 22(1), as such, it deserves to be quashed.

37. This leads me to the next question as to whether the penalty imposed invoking Section 22(2) of the VAT Act is sustainable. Section 22(2) of the VAT Act provides that the commissioner shall, where the omission leading to assessment or reassessment made under sub-section (1) is attributable to the dealer, impose upon him a penalty not exceeding twice the amount of tax so assessed or re-assessed but shall not be less than the amount of tax assessed. The penalty is imposable 22 leading to reassessment where the omission leading to assessment or reassessment under sub-section (1) is attributable to the dealer. In the instant case, it has already been held

that there is no order of assessment as the assessing officer did not pass any assessment order and thus, there is failure on the part of the assessing officer to pass the original assessment order. For the reason that the order of reassessment is to beheld without jurisdiction and without authority of law, therefore, the order imposing penalty passed upon reassessment cannot stand and accordingly, it deserves to be quashed.

29. Rule 20 under Chapter VI of VAT Rules, 2006 relates to "Returns". Rule 20(2)(d), on which reliance is placed by Mr. Sharma was inserted by notification dated 02.06.2011. Subsequently, by notification dated 21.10.2011, the words "in two copies" after the words "form 17-A" in Rule 20(2)(d) were inserted. Rule 20(2)(d) provides that after submission of electronic return, form 17-A in two copies be submitted along with copy of the challan of the tax deposited within thirty days in the relevant circle and acknowledgment has to be obtained. Rule 20(2)(e) provides that if the acknowledgment prescribed under clause (d) is not obtained, then it will be deemed that no return has been filed. Argument of Mr. Sharma that the date of acknowledgment of submission of electronic return is the date of the order of deemed assessment, and therefore, it is incorrect to say that there is no date of order of assessment, is misconceived. The acknowledgment obtained for submission of return cannot be construed to mean that the acknowledgment had resulted in an order of assessment."

4. Subsequently, there was another similar matter which came up for consideration before the Division Bench in TAXC NO. 74/2022 in the case of "M/s. Iron Junction Rajbandha Maidan, Raipur v. Commissioner of Commercial Tax" wherein keeping in view the decision rendered in the case of "M/s. Tata Teleservices Limited" (supra) the Division Bench had disposed of the Tax case in terms of the order passed in "M/s. Tata Teleservices Limited" (supra).

5. On the previous date of hearing this Court had instructed the State Counsel to verify whether the factual situation in the present writ petition also is similar or not. Learned Additional Advocate General entering appearance on behalf of the respondents today accepted the fact that on due perusal of the record and referring to the order submits that from the contents of the order it appears that there was no assessment order as such passed.

6. Given the said submission by the learned State Counsel, this Court is of the opinion that the present is also a writ petition which would squarely be covered by the decision of Division Bench of this Court in the case of "M/s. Tata Teleservices Limited" (supra). The writ

petition to the aforesaid extent therefore deserves to be and is accordingly allowed.

7. The impugned orders Annexure P/4 and P/5 dated 10.12.2018 and 09.12.2021 are set-aside/quashed and the matter stands remitted back to the authorities concerned leaving open the option on the part of the respondents, if they so chose to first issue the assessment order and then thereafter to proceed further in accordance with law.

8. With the aforesaid observations the present writ petition stands allowed and disposed of.

Sd/-

(P. Sam Koshy) Judge Ved