Jharkhand High Court
Damodar Valley Corporation ... vs The State Of Jharkhand Through The ... on 20 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (T) No. 425 of 2012
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1. Damodar Valley Corporation through its Joint Director
(Personnel) namely, Sylvanus Beck
2. Bokaro Thermal Power Station, a Unit of Damodar
Valley Corporation, Bokaro through Joint Director of
Personnel of DVC namely, Sylvanus Beck --- --- Petitioners
Versus
1. The State of Jharkhand through the Secretary-cum-
Commissioner, Commercial Taxes Department
2. Commissioner of Commercial Taxes, Jharkhand, Ranchi
3. Deputy Commissioner of Commercial Taxes, Tenughat Circle, Bokaro
4. Commercial Taxes Officer, Tenughat Circle, Bokaro--- --- Respondents
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
Through Video Conferencing
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For the Petitioners: Mr. Srijit Choudhary, Advocate
For the Resp-State: M/s Sachin Kumar, A.A.G-II, Deepak Kr. Dubey, A.C to A.A.G-II
---
09 / 20.01.2021 The writ petition was preferred in the year 2012 for the following relief (s).
(i) For issuance of an appropriate writ/order/direction for quashing Notice issued
by Respondent No. 3 vide Process No. 2963 dated 11.01.2012 (Annexure-4),
whereby the petitioners have been directed to pay the amount mentioned in the
said notice by 30.01.2012, failing which action will be taken for recovery of
the said amount through special mode of recovery.
(ii) For issuance of further appropriate writ/order/direction, including Writ of
Prohibition, prohibiting the Respondents from acting pursuant to the Notice
issued vide Process No. 2963 dated 11.01.2012 (Annexure-4) and/or
prohibiting the Respondents from taking any coercive steps for recovery of the
amount mentioned in the said notice.
(iii) For issuance of further appropriate writ(s)/order(s)/direction(s) as Your
Lordship may deem fit and proper in the facts and circumstances of the case.
2. As per the impugned notice at Annexure-4 dated 11.01.2012, an amount of Rs.
1,58,88,71,131/- was sought to be recovered in respect of A.Y. 2005-06, 2006-07 and
2007-08 as electricity duty. The assessment order is not under challenge. The writ
petition remained pending. Meanwhile, when it was taken up on 17.12.2020, learned
counsel for the DVC and State both took time to inquire about the status of the case
pending before the Hon'ble Supreme Court arising out of the judgment rendered by
the learned Division Bench of this Court in the case of Atibir Hi-Tech Pvt. Ltd.
versus State of Jharkhand [W.P (T) 6163/2006] and also latest instruction, so far as
the subject matter of the writ petition is concerned.
4. A supplementary counter affidavit has been filed today and soft copy whereof
was sent to the Court Master through e-mail yesterday. Following averments have
been made in the counter affidavit:
"7. That it is stated that the incidence of duty and surcharge payable under the "ED
Act" fell squarely upon the seller of electrical energy i.e. D.V.C./Petitioner in such a
situation the respondents are not receiving either duty or surcharge payable under
"ED Act" on the part of electrical energy as sold by the DVC to such
electrical/mining consumers. As such, the Respondents authorities passed the
Assessment Orders dated 19.05.2009 for the period of 2005-06, Assessment Orders
dated 20.05.2009 for the period of 2006-07 and Assessment Orders dated 21.05.2009
for the period of 2007-08.
8. That it is stated that the proceeding for assessment of the year 2005-06, 2006-07
and 2007-08 has been initiated on 22.12.2008 fixing the date of hearing on
29.01.2009. The petitioner has not appeared on 29.01.2009, filed attendance on
13.02.2009 and 26.02.2009 but after non-appearance on 21.03.2009, another date of
hearing was fixed on 16.06.2009. On this date the petitioner has not appeared
thereafter on 19.05.2009, 20.05.2009 and 21.05.2009 the assessment order was
passed in accordance with law. No objection was raised by the petitioner during the
assessment proceedings for staying the same. The review petition was also dismissed
as it was devoid on any merit."
5. It is further stated at Para-10 of the supplementary counter affidavit that DVC
has filed three writ petitions i.e. WPT No. 5318/2009, WPT No. 5349/2009 and WPT
No. 5516 against the assessment orders passed for the A.Y. 2005-06, 2006-07 and
2007-08 in DVC/BTPS/ED-23. It is further stated that DVC has filed two more writ
petitions i.e. WPT No. 5187/2009 and WPT No. 5188/2009 against the assessment
orders for the A.Y. 2006-07 and 2007-08 in DVC/CTPS/ED-21. It has been stated at
Para-15 that during the pendency of the writ petitions i.e. WPT No. 5318/2009, WPT
No. 5349/2009 and WPT No. 5516, notices were sent to the Chief Engineer, DVC,
BTPC in T.G ED-23 vide Process No. 2963 dated 11.01.2012 (Annexure-4),
impugned herein, to deposit an amount of Rs. 1,58,88,71,131/- on or before
30.01.2012 and if it is not deposited within the stipulated period, dues amount will be
recovered by special mode of recovery. Instead of filing an interlocutory application
in the pending writ petitions, petitioner filed a separate writ petition i.e. the present
one in which counter affidavit was also filed on 28.02.2012. It is further stated that
this Court vide judgment dated 31.10.2012 at Annexure-E, has set aside the
assessment order challenged in these five writ petitions and the matter has been
remanded to the Assessing Officer to pass a fresh order after taking into
consideration the judgment delivered in the case of Anjaney Ferro Alloys Ltd.
Versus State of Jharkhand and others reported in [2012 (3) JCR 298 (Jhr.) as well
as order passed in the Review Petitions and thereafter, pass a fresh assessment order
after giving opportunity of hearing to the writ petitioners. The Respondent State has
preferred Special Leave Petitions vide C.C No (s). 7162-7166/2013 [State of
Jharkhand and others versus Damodar Valley Corporation and another] before
the Hon'ble Supreme Court, which is still pending. It has been further stated at Para-
19 that after filing of the present writ petition, no recovery has been done.
Respondents have also taken the plea of an alternative remedy under section 47 of
the JVAT Act. According to the learned counsel for the State, writ petition is not
maintainable in the absence of any challenge to the assessment orders and further,
decision have been rendered by this Court in WPT No. 5187/2009 and analogous
cases in which assessment orders for the relevant assessment years have been set
aside.
6. Learned counsel for the petitioners Mr. Srijit Choudhary has not disputed that
the assessment orders for the relevant financial years, subject matter of the aforesaid
writ petitions, were set aside by the learned Division Bench of this Court vide
judgment dated 31.10.2012 and are subject matter of appeal before the Hon'ble
Supreme Court. Learned counsel for the petitioners also does not dispute that the
assessment orders were not under challenge in the present writ petition, but only the
demand notice was under challenge.
7. Therefore, in the aforesaid facts and circumstances, learned counsel for the
petitioners seeks permission to withdraw this writ petition. Accordingly, it is
dismissed as withdrawn.
(Aparesh Kumar Singh, J.)
(Anubha Rawat Choudhary, J.)
Ranjeet/
