M/S Bharat Coking Coal Ltd. vs The State Of Jharkhand Through ...
2022 Latest Caselaw 4642 Jhar

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(T) No. 4760 of 2017
     M/s Bharat Coking Coal Ltd., having its registered office
     at Koyla Bhawan, Dhanbad and one of its unit known as
     Kusunda Area-VI, Dhanbad through its General Manager
     Shri Jai Prakash Gupta, R/o Kusunda Area, Dhanbad
                                                                  --- --- Petitioner
                                     Versus
     1.The State of Jharkhand through Commissioner of Commercial
       Taxes, Jharkhand, Ranchi
     2.Joint Commissioner of Commercial Taxes (Appeals), Dhanbad
       Division, Dhanbad
     3.Deputy Commissioner of Commercial Taxes, Dhanbad Circle, Dhanbad
     4.Assistant Commissioner of Commercial Taxes, Dhanbad Circle, Dhanbad
     5.Commercial Taxes Officer, Dhanbad Circle, Dhanbad       --- --- Respondents

                                        .......

CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioners : M/s Biren Poddar, Sr. Advocate, Deepak Sinha, Piyush Poddar, Rakhi Sharma, Manav Poddar, Advocate For the Respondents : M/s Md. Shahabuddin, S.C.VII, Suraj Prakash, Zaid Imam, A.C to Sr.C.-VII

18/21.11.2022 Heard learned counsel for the petitioner and learned counsel for the State.

2. The writ petition was preferred for the following reliefs:

a) For quashing and setting reassessment-cum-penalty Orders, dated28.10.2016(Annexure-8 aside two reassessment -cum- penalty orders, both dated 28.10.2016 (Annexure-8 & 9) passed by the Deputy Commissioner of Commercial Taxes, Dhanbad Circle, Dhanbad under Section 40(1) of the Jharkhand Value Added Tax Act, 2005 for the period 2009-10 (VAT) pursuant to a non-existing audit objection (Annexure-5), which was raised against the ex-parte original assessment order dated 13.02.2013(Annexure-2), which ex-parte original assessment order was already set aside by the Joint Commissioner of Commercial Taxes (Appeals), Dhanbad Division, Dhanbad vide order dated 09.09.2014(Annexure-6) with a direction to the assessing officer to pass fresh assessment order in accordance with law after examination and verification of books of accounts of the Petitioner and after considering all evidences and other documents produced by the Petitioner.

b) For a declaration two reassessment orders both dated 28.10.2016 passed u/s 40(1) of the JVAT Act,2005 could not have been passed by the Deputy Commissioner of Commercial Taxes, Dhanbad Circle, Dhanbad because there was no existing assessment order passed u/s 35 of the said Act since the original assessment order dated 13.02.2013(Annexure-2) was already set aside by the Joint Commissioner of Commercial Taxes (Appeals), Dhanbad Division, Dhanbad vide appellate order dated 09.09.2014(Annexure-6)passed in Appeal Case No. DH VAT- 32/2012-13 by which the case was remanded to the assessing officer to pass a fresh order in accordance with law, as already stated above.

c) For a further declaration that the aforesaid reassessment orders passed u/s 40(1) of the JVAT Act, 2005 dated 28.10.2016

(Annexure-8 & 9) could not have been passed by the Deputy Commissioner of Commercial Taxes, Dhanbad Circle, Dhanbad because the only provision for making reassessment for the said year is section 40(1) of the Jharkhand Value Added Tax Act, 2005 and in view of the then sub-section (2) of section 40, now renumbered as sub-section (4) of section 40 of the said Act, no order of reassessment can be made under said sub-section (1) of section 40 after the expiry of 5 years from the end of the year as defined u/s 2(lxiv) to mean the financial year and in the instant case, the impugned reassessment orders for the said financial year i.e. 2009-10 were passed on 28.10.2016 and therefore the same are hopelessly barred by limitation as they could have been passed latest by 31.03.2015 only.

d) For a direction to the concerned Respondent to pass a fresh assessment order u/s 35(6) of the JVAT Act as directed by the Joint Commissioner of Commercial Taxes (Appeals), Dhanbad Division, Dhanbad vide appellate order dated 09.09.2014 (Annexure-6) passed in Appeal Case No. DH VAT-32/2012-13 by which the case was remanded to the assessing officer to pass a fresh order in accordance with law, as already stated above.

e) For quashing and setting aside the Demand Notices being Nos. 6067 and 6068 both dated 28.10.2016(Annexures-10 & 11) issued pursuant to the aforesaid reassessment-cum-penalty Orders passed on 28.10.2016(Annexures-8 & 9) demanding sums of Rs.27,62,81,096.76 and Rs.1,97,160/- respectively.

f) For a declaration that initiation of reassessment proceeding u/s 40(1) of the JVAT Act vide order sheet dated 09.03.2015 contained in Annexure-3on the basis of audit objection (Annexure-5) by the Deputy Commissioner of Commercial Taxes, Dhanbad Circle, Dhanbad is void ab initio because he failed to record his own satisfaction and reasons to believe to the effect that whole or any part of the turnover of the Petitioner in respect to the said year 2009-10 has either i. escaped assessment; or ii. been under assessed; or iii. been assessed at a rate lower than the rate on which it is assessable;

iv. been wrongly allowed any deduction therefrom; or;

v. been wrongly allowed any credit therein.

3. Petitioner had also approached the appellate authority after passing of the reassessment order dated 28.10.2016 (Annexure-8 &9) on 04.01.2017. The appellate authority has simply disposed of the three appeals i.e., Appeal Case Nos. DH VAT-71/2016-17; DH VAT-72/2016- 17 and DH CST-49/2016-17 by order dated 29.12.2017 ( part of Annexure-12 series at page 25 of the rejoinder affidavit filed by the petitioner to the counter affidavit of the respondent 1,3,4 and 5), on account of pendency of the writ petition.

4. Learned Senior Counsel for the petitioner has inter alia raised a number of grounds to assail the reassessment order passed upon audit objection.

5. Respondents have also filed their counter affidavit controverting each of the grounds.

6. Learned counsel for the petitioner has also relied upon certain judgments passed by this Court such as in the case of Exide Industries Limited, Jugsalai, Jamshedpur Vrs. The State of Jharkhand & others in W.P.(T) No. 4866 of 2017 dated 03.12.2019 (Annexure-13) and in the case of Jharkhand Ispat Pvt. Limited Vrs. State of Jharkhand & others in W.P.(T) 3755 of 2013 dated 19.12.2019 (Annexure-14).

7. However, since the petitioner has bypassed the alternative remedies and approached this Court, we are of the view that petitioner should exhaust the alternative remedies first before approaching this Court in case he is aggrieved thereby. We are also of the opinion that the appellate authority ought to have decided the appeals on merits since there was no stay in the present writ petition. As such, the appellate authority i.e., Joint Commissioner of State Tax (Appeals), Dhanbad Division, Dhanbad shall proceed to decide the appeals in accordance with law. The Appeal Case Nos. DH VAT-71/2016-17; DH VAT-72/2016- 17 and DH CST-49/2016-17, which were disposed of vide order dated 29.12.2017 are revived.

8. Needless to say, parties are at liberty to take all such grounds as are available in law before the appellate authority. The writ petition is disposed of without getting into the merits of the case at this stage.

(Aparesh Kumar Singh, J.)

(Deepak Roshan, J.) A.Mohanty