Jharkhand High Court
M/S Bharat Coking Coal Ltd. A ... vs State Of Jharkhand on 20 September, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (T) No. 840 of 2020
M/s Bharat Coking Coal Ltd. a Company registered under the
Companies Act, 1956 and a Government of India Undertaking
having its registered office at Koyla Bhawan, Koyla Nagar,
P.O. Koyla Nagar, P.S. Saraidhela, District-Dhanbad --- Petitioner
Versus
1. State of Jharkhand, Ministry of Finance, having its office at
Jharkhand Secretariat, Project Building, P.O. Dhurwa,
P.S. Hatia, District-Ranchi
2. Commissioner of Commercial Taxes, Commercial Taxes Department, having its
office at Jharkhand Secretariat, Project Building, P.O. Dhurwa,
P.S. Hatia, District-Ranchi
3. Assistant Commissioner of State Tax, Urban Circle, P.O. Dhanbad,
P.S. Dhanbad, District Dhanbad
4. Jharkhand Bijli Vitran Nigam Limited (JBVNL, a Company duly
registered under the provisions of the Companies Act, 1956, having its
registered office at Engineering Bhawan, P.O Dhurwa, P.S. Hatia,
District-Ranchi --- Respondents
With
W.P. (T) No. 836 of 2020
M/s Bharat Coking Coal Ltd. a Company registered under the
Companies Act, 1956 and a Government of India Undertaking
having its registered office at Koyla Bhawan, Koyla Nagar,
P.O. Koyla Nagar, P.S. Saraidhela, District-Dhanbad --- Petitioner
Versus
1. State of Jharkhand, Ministry of Finance, having its office at
Jharkhand Secretariat, Project Building, P.O. Dhurwa,
P.S. Hatia, District-Ranchi
2. Commissioner of Commercial Taxes, Commercial Taxes Department, having its
office at Jharkhand Secretariat, Project Building, P.O. Dhurwa,
P.S. Hatia, District-Ranchi
3. Assistant Commissioner of State Tax, Urban Circle, P.O. Dhanbad,
P.S. Dhanbad, District Dhanbad
4. Jharkhand Bijli Vitran Nigam Limited (JBVNL, a Company duly
registered under the provisions of the Companies Act, 1956, having its
registered office at Engineering Bhawan, P.O Dhurwa, P.S. Hatia,
District-Ranchi --- Respondents
With
W.P. (T) No. 837 of 2020
M/s Bharat Coking Coal Ltd. a Company registered under the
Companies Act, 1956 and a Government of India Undertaking
having its registered office at Koyla Bhawan, Koyla Nagar,
P.O. Koyla Nagar, P.S. Saraidhela, District-Dhanbad --- Petitioner
Versus
1. State of Jharkhand, Ministry of Finance, having its office at
Jharkhand Secretariat, Project Building, P.O. Dhurwa,
P.S. Hatia, District-Ranchi
2. Commissioner of Commercial Taxes, Commercial Taxes Department, having its
office at Jharkhand Secretariat, Project Building, P.O. Dhurwa,
P.S. Hatia, District-Ranchi
3. Assistant Commissioner of State Tax, Urban Circle, P.O. Dhanbad,
P.S. Dhanbad, District Dhanbad
4. Jharkhand Bijli Vitran Nigam Limited (JBVNL, a Company duly
registered under the provisions of the Companies Act, 1956, having its
registered office at Engineering Bhawan, P.O Dhurwa, P.S. Hatia,
District-Ranchi --- Respondents
2.
With
W.P. (T) No. 838 of 2020
M/s Bharat Coking Coal Ltd. a Company registered under the
Companies Act, 1956 and a Government of India Undertaking
having its registered office at Koyla Bhawan, Koyla Nagar,
P.O. Koyla Nagar, P.S. Saraidhela, District-Dhanbad --- Petitioner
Versus
1. State of Jharkhand, Ministry of Finance, having its office at
Jharkhand Secretariat, Project Building, P.O. Dhurwa,
P.S. Hatia, District-Ranchi
2. Commissioner of Commercial Taxes, Commercial Taxes Department, having its
office at Jharkhand Secretariat, Project Building, P.O. Dhurwa,
P.S. Hatia, District-Ranchi
3. Assistant Commissioner of State Tax, Urban Circle, P.O. Dhanbad,
P.S. Dhanbad, District Dhanbad
4. Jharkhand Bijli Vitran Nigam Limited (JBVNL, a Company duly
registered under the provisions of the Companies Act, 1956, having its
registered office at Engineering Bhawan, P.O Dhurwa, P.S. Hatia,
District-Ranchi --- Respondents
With
W.P. (T) No. 839 of 2020
M/s Bharat Coking Coal Ltd. a Company registered under the
Companies Act, 1956 and a Government of India Undertaking
having its registered office at Koyla Bhawan, Koyla Nagar,
P.O. Koyla Nagar, P.S. Saraidhela, District-Dhanbad --- Petitioner
Versus
1. State of Jharkhand, Ministry of Finance, having its office at
Jharkhand Secretariat, Project Building, P.O. Dhurwa,
P.S. Hatia, District-Ranchi
2. Commissioner of Commercial Taxes, Commercial Taxes Department, having its
office at Jharkhand Secretariat, Project Building, P.O. Dhurwa,
P.S. Hatia, District-Ranchi
3. Assistant Commissioner of State Tax, Urban Circle, P.O. Dhanbad,
P.S. Dhanbad, District Dhanbad
4. Jharkhand Bijli Vitran Nigam Limited (JBVNL, a Company duly
registered under the provisions of the Companies Act, 1956, having its
registered office at Engineering Bhawan, P.O Dhurwa, P.S. Hatia,
District-Ranchi --- Respondents
With
W.P. (T) No. 841 of 2020
M/s Bharat Coking Coal Ltd. a Company registered under the
Companies Act, 1956 and a Government of India Undertaking
having its registered office at Koyla Bhawan, Koyla Nagar,
P.O. Koyla Nagar, P.S. Saraidhela, District-Dhanbad --- Petitioner
Versus
1. State of Jharkhand, Ministry of Finance, having its office at
Jharkhand Secretariat, Project Building, P.O. Dhurwa,
P.S. Hatia, District-Ranchi
2. Commissioner of Commercial Taxes, Commercial Taxes Department, having its
office at Jharkhand Secretariat, Project Building, P.O. Dhurwa,
P.S. Hatia, District-Ranchi
3. Assistant Commissioner of State Tax, Urban Circle, P.O. Dhanbad,
P.S. Dhanbad, District Dhanbad
4. Jharkhand Bijli Vitran Nigam Limited (JBVNL, a Company duly
registered under the provisions of the Companies Act, 1956, having its
registered office at Engineering Bhawan, P.O Dhurwa, P.S. Hatia,
District-Ranchi --- Respondents
3.
CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mr. Justice Deepak Roshan
For the Petitioner : Mr. Biren Poddar, Sr. Advocate
M/s. Rakhi Sharma, Piyush Poddar,
Manav Poddar, Advocates
For the Resp.-State : Mr. Gaurav Abhishek, A.C to A.G
For the Resp.-JBVNL : Mr. Mrinal Kanti Roy, Advocate
----
11/20.09.2022 Heard learned senior counsel for the petitioners in all these writ
petitions, learned counsel representing the State and JBVNL.
2. These petitioners are common and nature of challenge in all these writ
petitions is also same but concerning different Assessment Years. The relevant
details concerning each writ petition are furnished herein below in the form of a
table.
W.P.(T) Assessment Best judgment Notice of Demand Demand Notice
No. (s) Year assessment cum dated with
penalty order Annexure
dated with
Annexures
840/2020 2013-14 04th November, Demand Notice Process No. 22970
2019 No. 19154 dated dated 21.01.2020
(Annexure-1) 04th November, (Annexure-4)
2019 (Annexure-2)
836/2020 2017-18 04th November, Demand Notice Process No. 22970
2019 No. 19158 dated dated 21.01.2020
(Annexure-1) 04th November, (Annexure-4)
2019 (Annexure-2)
837/2020 2016-17 04th November, Demand Notice Process No. 22970
2019 No. 19157 dated dated 21.01.2020
(Annexure-1) 04th November, (Annexure-4)
2019 (Annexure-2)
838/2020 2014-15 04th November, Demand Notice Process No. 22970
2019 No. 19155 dated dated 21.01.2020
(Annexure-1) 04th November, (Annexure-4)
2019 (Annexure-2)
839/2020 2015-16 04th November, Demand Notice Process No. 22970
2019 No. 19156 dated dated 21.01.2020
(Annexure-1) 04th November, (Annexure-4)
2019 (Annexure-2)
841/2020 2012-13 04th November, Demand Notice Process No. 22970
2019 No. 19153 dated dated 21.01.2020
(Annexure-1) 04th November, (Annexure-4)
2019 (Annexure-2)
3. For the convenience sake, prayer made in W.P (T) No. 840 of 2020,
which is the first case in the batch of writ petitions, is being extracted hereunder
as similar prayers have been made in each of the writ petition.
(a) For quashing and setting aside the best judgment Assessment-cum-
penalty Order dated 04.11.2019 (Annexure-1) passed by the
Assistant Commissioner of State Tax, Urban Circle, Dhanbad
(respondent No. 3) for the period 2013-14 under Section 5 of the
Jharkhand Electricity Duty (Amendment) Act 2011 (herein after
referred to as the Amendment Act, 2011), by which Section (4a)
was substituted in Bihar Electricity Duty, 1948 and the said
Respondent No. 3 in a quite illegal, arbitrary, in complete violation
of the provisions of law, without jurisdiction and without adhere to
the judgment of this Hon'ble Court passed in the case of M/s
Anjaneya Ferro Alloys Ltd. Vrs. Sate of Jharkhand & Ors.
reported in (2012) 3 JCR 298 (Jhr), whereby the Hon'ble Court
while declaring Section 5 of the said Amendment Act, 2011
amending Section 4 including Section 4A of the Act of 1948 to be
ultra vires and illegal, has observed that the same in wholly
unworkable and may create chaotic situation and made against the
public interest.
(b) For quashing and setting aside the Notice of Demand contained in
Office No 19154 dated 04.11.2019 (Annexure-2) issued by the
Respondent No. 3 pursuant to passing of the said best judgment
Assessment-cum-penalty Order dated 04.11.2019 (Annexure-1)
showing the amount of payable by the Petitioner on account of
electricity duty and penalties for the period in question i.e. 2013-
14 to the tune of Rs. 5,01,56,182.00.
(c) For quashing and setting aside the Notice contained in Process No.
22970 dated 21.01.2020 (Annexure-4) issued by the Respondent
No. 3, interalia, for the period 2013-14 directing the Petitioner to
deposit the amount mentioned therein by 20.02.2020, failing which
legal action under the provisions of Jharkhand Value Added Tax
Act, 2005 shall be taken against the Petitioner.
(d) For a declaration that the Petitioner is neither liable to make
payment of electricity duty nor the penalties under the provisions of
Electricity Duty Act, 1948 read with Jharkhand Electricity Duty
(Amendment) Act, 2011, as has been held by this Hon'ble Court in
the case of M/s Anjaneya Ferro Alloys Ltd. (Supra), whereby
this Hon'ble Court has been pleased to declare Section 5 of the
Jharkhand Electricity Duty (Amendment) Act, 2011 amending
section 4 including Section 4A of the Act of 1948 to be arbitrary as
it gives power to the State Government to choose and pick up either
of seller or consumer of the electricity for payment of electricity
duty and Section 5 of the Act of 2011 amending Section 4 of the
Act of 1948 is wholly unworkable and may create chaotic situation,
made against the public interest, therefore declared to be ultra vires
and illegal and admittedly in the instant case Jharkhand Bijli Vitran
Nigam Limited (JBVNL) (Respondent N0.4) is the
licensee/assessee and covered under the definition of assessee given
in Rule 2(b) of the Rules, 1949 and the petitioner company is
neither licensee nor assessee and therefore the State Government
has no right to recover the electricity duty from the Petitioner
Company, who are the consumer of the Respondent No. 4.
(e) For quashing and setting aside the Order dated 21.01.2020
(Annexure-3) passed by the Respondent No. 3, whereby the
Objection raised by the Petitioner before the Respondent No.3,
objecting the above best judgment assessment-cum-penalty order
dated 04.11.2019 (Annexure-1), was illegally dismissed by the
Respondent No. 3 being not in accordance with law, without going
into the merit of the same.
4. Petitioner has taken a plea of violation of principles of natural justice. It
has been argued that there is no finding to the effect that petitioner is selling
electricity to its consumers within its town area. A plea has also been raised
relying upon the decision of this Court in the case of M/s Anjaneya Ferro
Alloys Ltd. Vrs. Sate of Jharkhand & Ors. reported in (2012) 3 JLJR 399
(Jhr), as per which petitioner is not liable to pay electricity duty.
5. Respondent-State has contested the plea by filing counter affidavit. They
have relied upon S.O. 4 dated 18th June, 2012, which is an amendment
incorporated in the Bihar Electricity Duty Rules, 1949 by amendment of the
year 2012. Respondents have also taken a plea that petitioner comes within the
definition of bulk supplier. Apart from that, the Respondent-State has taken a
plea of alternative remedy of appeal at Para-14 of their counter affidavit in
W.P. (T) No. 840 of 2020.
6. JBVNL is the licensee and supplies electricity to the petitioner. Counter
affidavit has also been filed in W.P (T) No. 838 of 2020 which has been
adopted in other writ petitions also.
7. Bihar Electricity Duty Rules, 1949 provides for forum of appeal,
revision and review under Rule 14 thereof.
8. Therefore, learned senior counsel for the petitioner after some argument,
seeks permission to withdraw these writ petitions with liberty to pursue
alternative remedy before the Appellate Forum.
9. Accordingly, these writ petitions stand disposed of with the aforesaid
liberty. Let it be made clear that we have not gone into the merits of the case. It
is open for the petitioners to pursue the alternative remedy, as provided under
the Electricity Duty Rules, 1949.
(Aparesh Kumar Singh, J)
(Deepak Roshan, J)
jk/
