Rajasthan High Court - Jodhpur
M/S. J.K. Cement Limited vs State Of Rajasthan on 2 March, 2021
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) S.B. Civil Writ Petition No. 5734/2020
M/s. J.k. Cement Limited, Registered Office At Kamla Tower
Kanpur. Through Its Legal Manager Shri Akshat Srivastava Son
Of Shri N.p. Srivastava, Aged About 41 Years, Resident Of E 217,
Shrinathpuram, Kota
----Petitioner
Versus
1. State Of Rajasthan, Through The Commissioner,
Rajasthan State Tax, Commercial Tax Department, Anti-
Evasion, Kota, Rajasthan.
2. Deputy Commissioner, Commercial Tax Department, Anti
Evasion, Kota, Rajasthan.
3. Assistant Commissioner, Commercial Tax Department,
Anti Evasion, Kota, Rajasthan.
4. State Tax Officer, Commercial Taxes Department, Ward-I,
Circle Anti Evasion, Kota, Rajasthan.
----Respondents
Connected With
(2) S.B. Civil Writ Petition No. 5699/2020
M/s J.k. Cement Ltd., Registered Office At Kamla Tower Kanpur.
Through Its Legal Manager Akshat Srivastava S/o N.p.
Srivastava, Aged About 41 Years, Resident Of E 217, Shrinath
Puram, Kota
----Petitioner
Versus
1. State Of Rajasthan, Through The Commissioner,
Rajasthan State Tax, Commercial Tax Department, Anti
Evasion, Kota, Rajasthan.
2. Deputy Commissioner, Commercial Tax Department Anti
Evasion, Kota.
3. Assistant Commissioner, Commercial Tax Department,
Anti Evasion, Kota, Rajasthan
4. Commercial Tax Officer, Anti Evasion Circle, Commercial
Tax Department, Kota, Rajasthan
5. State Tax Officer, Commercial Taxes Department, Ward-I,
Circle Anti Evasion, Kota, Rajasthan.
(2 of 10) [CW-5734/2020]
----Respondents
(3) S.B. Civil Writ Petition No. 5724/2020
M/s. J.k. Cement Limited, Registered Office At Kamla Tower
Kanpur. Through Its Legal Manager Shri Akshat Srivastava Son
Of Shri N.p. Srivastava, Aged About 41 Years, Resident Of E 217,
Shrinathpuram, Kota
----Petitioner
Versus
1. State Of Rajasthan, Through The Commissioner,
Rajasthan State Tax, Commercial Tax Department, Anti-
Evasion, Kota, Rajasthan.
2. Deputy Commissioner, Commercial Tax Department, Anti
Evasion, Kota, Rajasthan.
3. Assistant Commissioner, Commercial Tax Department,
Anti Evasion, Kota, Rajasthan.
4. State Tax Officer, Commercial Taxes Department, Ward-I,
Circle Anti Evasion, Kota, Rajasthan.
----Respondents
(4) S.B. Civil Writ Petition No. 5725/2020
M/s J.k. Cement Limited, Registered Office At Kamla Tower
Kanpur Through Its Legal Manager Shri Akshat Srivastava Son Of
Shri N.p. Srivastava, Aged About 41 Years, Resident Of E 217,
Shrinathpuram, Kota.
----Petitioner
Versus
1. State Of Rajasthan, Through The Commissioner,
Rajasthan State Tax, Commercial Tax Department, Anti-
Evasion, Kota, Rajasthan.
2. Deputy Commissioner, Commercial Tax Department, Anti-
Evasion, Kota.
3. Commercial Tax Officer, Special Circle Ii, Commercial Tax
Department, Kota, Rajasthan.
4. State Tax Officer, Commercial Taxes Department, Ward-I,
Circle Anti-Evasion, Kota, Rajasthan.
----Respondents
(5) S.B. Civil Writ Petition No. 6501/2020
M/s. J.k. Lakshmi Cement Limited, Registered Office At
Jaykaypuram , District Sirohi, Rajasthan, Through Its Authorized
(3 of 10) [CW-5734/2020]
Signatory And Power Of Attorney Holder Mr. Alok Kumar Son Of
Shri Arun Kumar Sing, Aged About 42 Years, Resident Of B-14/1,
Lal Bahadur Nagar, Jln Marg, Jaipur 302017.
----Petitioner
Versus
1. State Of Rajasthan, Through The Commissioner,
Commercial Tax Department, Kar Bhawan, Jaipur
Rajasthan.
2. Assistant Commissioner, Commercial Tax Department,
Anti Evasion, Pali, Rajasthan.
3. Assistant Commissioner, Commercial Tax Department,
Special Circle, Pali, Rajasthan.
4. Assistant Commercial Tax Officer, Commercial Tax
Department, Anti Evasion, Circle-I, Pali, Rajasthan.
----Respondents
(6) S.B. Civil Writ Petition No. 6596/2020
M/s. J.k. Lakshmi Cement Limited, Registered Office At
Jaykaypuram , District Sirohi, Rajasthan, Through Its Authorized
Signatory And Power Of Attorney Holder Mr. Alok Kumar Son Of
Shri Arun Kumar Singh, Aged About 42 Years, Resident Of B-
14/1, Lal Bahadur Nagar, Jln Marg, Jaipur 302017.
----Petitioner
Versus
1. State Of Rajasthan, Through The Commissioner,
Commercial Tax Department, Kar Bhawan, Jaipur
Rajasthan.
2. Assistant Commissioner, Commercial Tax Department,
Anti Evasion, Pali, Rajasthan.
3. Assistant Commissioner, Commercial Tax Department,
Special Circle, Pali, Rajasthan.
4. Assistant Commercial Tax Officer, Commercial Tax
Department, Anti Evasion, Circle-I, Pali, Rajasthan.
----Respondents
(7) S.B. Civil Writ Petition No. 6597/2020
M/s. J.k. Lakshmi Cement Limited, Registered Office At
Jaykaypuram , District Sirohi, Rajasthan, Through Its Authorized
Signatory And Power Of Attorney Holder Mr. Alok Kumar Son Of
Shri Arun Kumar Singh, Aged About 42 Years, Resident Of B-
(4 of 10) [CW-5734/2020]
14/1, Lal Bahadur Nagar, Jln Marg, Jaipur 302017.
----Petitioner
Versus
1. State Of Rajasthan, Through The Commissioner,
Commercial Tax Department, Kar Bhawan, Jaipur
Rajasthan.
2. Assistant Commissioner, Commercial Tax Department,
Anti Evasion, Pali, Rajasthan.
3. Assistant Commissioner, Commercial Tax Department,
Special Circle, Pali, Rajasthan.
4. Assistant Commercial Tax Officer, Commercial Tax
Department, Anti Evasion, Circle-I, Pali, Rajasthan.
----Respondents
(8) S.B. Civil Writ Petition No. 6598/2020
M/s. J.k. Lakshmi Cement Limited, Registered Office At
Jaykaypuram , District Sirohi, Rajasthan, Through Its Authorized
Signatory And Power Of Attorney Holder Mr. Alok Kumar Son Of
Shri Arun Kumar Singh, Aged About 42 Years, Resident Of B-
14/1, Lal Bahadur Nagar, Jln Marg, Jaipur 302017.
----Petitioner
Versus
1. State Of Rajashtan, Through The Commissioner,
Commercial Tax Department, Kar Bhawan, Jaipur
Rajasthan.
2. Assistant Commissioner, Commercial Tax Department,
Anti Evasion, Pali, Rajasthan.
3. Assistant Commissioner, Commercial Tax Department,
Special Circle, Pali, Rajasthan.
4. Assistant Commercial Tax Officer, Commercial Tax
Department, Anti Evasion, Circle-I, Pali, Rajasthan.
----Respondents
(9) S.B. Civil Writ Petition No. 6616/2020
M/s. J.k. Lakshmi Cement Limited, Registered Office At
Jaykaypuram , District Sirohi, Rajasthan, Through Its Authorized
Signatory And Power Of Attorney Holder Mr. Alok Kumar Son Of
Shri Arun Kumar Singh, Aged About 42 Years, Resident Of B-
14/1, Lal Bahadur Nagar, Jln Marg, Jaipur 302017.
----Petitioner
(5 of 10) [CW-5734/2020]
Versus
1. State Of Rajashtan, Through The Commissioner,
Commercial Tax Department, Kar Bhawan, Jaipur
Rajasthan.
2. Assistant Commissioner, Commercial Tax Department,
Anti Evasion, Pali, Rajasthan.
3. Assistant Commissioner, Commercial Tax Department,
Special Circle, Pali, Rajasthan.
4. Assistant Commercial Tax Officer, Commercial Tax
Department, Anti Evasion, Circle-I, Pali, Rajasthan.
----Respondents
(10) S.B. Civil Writ Petition No. 6620/2020
M/s. J.k. Lakshmi Cement Limited, Registered Office At
Jaykaypuram , District Sirohi, Rajasthan, Through Its Authorized
Signatory And Power Of Attorney Holder Mr. Alok Kumar Son Of
Shri Arun Kumar Singh, Aged About 42 Years, Resident Of B-
14/1, Lal Bahadur Nagar, Jln Marg, Jaipur 302017.
----Petitioner
Versus
1. State Of Rajasthan, Through The Commissioner,
Commercial Tax Department, Kar Bhawan, Jaipur
Rajasthan.
2. Assistant Commissioner, Commercial Tax Department,
Anti Evasion, Pali, Rajasthan.
3. Assistant Commissioner, Commercial Tax Department,
Special Circle, Pali, Rajasthan.
4. Assistant Commercial Tax Officer, Commercial Tax
Department, Anti Evasion, Circle-I, Pali, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Ravi Bhansali, Sr. Advocate
assisted by Mr. Ramit Mehta and
Mr. Saurabh Maheshwari
For Respondent(s) : Mr. Sunil Bhandari
Mr. Hemant Dutt
(6 of 10) [CW-5734/2020]
JUSTICE DINESH MEHTA
Order
02/03/2021
1. These matters have come up on board for consideration of
applications under Article 226 (3) of the Constitution of India filed
by the respondents, seeking vacation of the following interim
order granted by a Coordinate Bench of this Court on
24.07.2020 :
"In wake of onslaught of COVID-19, abundant caution
is being taken while hearing the matter in Court.
Issue notice to the respondents, returnable within six
weeks.
In the meanwhile, effect and operation of the
impugned notices dated 20.03.2020, 06.07.2020 and
summon dated 27.12.2019 shall remain stayed."
2. Mr. Sunil Bhandari, learned counsel appearing for the
respondent - Department, at the outset submitted that this Court
has stayed the effect and operation of notice, which has resulted
in stalling the proceedings initiated by the respondent - authority;
ignoring the fact that petitioner has simply challenged a
notice/summons, while emphasising that final final adjudication is
yet to be made, he argued that in light of the settled position of
law, this Court cannot exercise its writ jurisdiction, while citing
hordes of judgments noted hereunder :
(i) Banswara Syntex Ltd Vs. Union of India & Ors. reported in
2008 (2) WLN 320 (Raj.);
(ii) M/s. Electrolux Kelvinator Ltd. Vs. Union of India & Ors.
reported in 2005 (6) RDD 1825 (Raj);
(iii) M/S. HCL Infosystems Ltd. vs. The State of Rajasthan
reported in 2019 (4) WLC (Raj.) 708;
(7 of 10) [CW-5734/2020]
(iv) Assistant Commissioner (CT) LTU, Kakinada and Ors. vs.
Glaxo Smith Kline Consumer Health Care Limited in Civil Appeal
No. 2413/2020;
(v) Commissioner of Income- Tax vs. Chhabil Dass Agarwal
reported in [2013] 36 taxmann.Com 36 (SC);
(vi) Siemens Ltd vs. State of Maharashtra and Ors. reported in
(2006) 12 Supreme Court Cases 33;
(vii) Commissioner of Income-Tax, Gujarat vs. Vijaybhai N.
Chandrani reported in 2013 AIR SCW 4675;
(viii) Union of India vs. Bajaj Tempo Ltd. & Ors. reported in (1998)
9 Supreme Court Cases 281.
3. As against this, Mr. Ravi Bhansali, learned Senior Counsel,
appearing for the petitioner argued that the Coordinate Bench was
pleased to grant interim order after considering the submissions
made by the petitioner, including non-availing the opportunity to
file reply.
4. Learned Senior Counsel invited Court's attention towards the
assessment order dated 20.03.2017 (Annexs.2 & 3) passed by the
Assessing Officer and highlighted that while passing the order
aforesaid, the Assessing Officer had examined books of account;
relevant record so also record relating to HSD (Diesel) and passed
an assessment order under Sections 24, 25 & 55 of Rajasthan
Value Added Tax Act, 2003 (hereinafter referred to as the 'Act of
2003'). Inspite of the complete enquiry being done, respondents
No.2 to 4 (same person) have initiated proceedings for
reassessment in exercise of powers purported under Section 26 of
the Act of 2003 read with Section 174 of the Rajasthan Goods &
Service Tax Act, 2017 (hereinafter referred to as the 'Act of 2017).
(8 of 10) [CW-5734/2020]
5. It was argued by Mr. Bhansali that once a detailed and
reasoned assessment order has been passed, that too after
examining each aspect of the matter and considering all relevant
facts and documents on record, the respondent - Assessing
Officer cannot initiate reassessment proceedings in the manner
attempted to. He added that it is nothing but a mere change of
opinion and arbitrary exercise.
6. It was also asserted that petitioner - Company has not sold
diesel, purchased on concessional rate or otherwise to anyone
including its contractor or sub-contractor. He maintained that the
diesel was supplied free of cost besides being used by the
Company and the allegation levelled by the respondents in their
notice that the petitioner has sold diesel against price received is,
absolutely incorrect.
7. Learned Senior Counsel argued that since the foundational
fact, i.e. sale of diesel is absent, the notice proposing to initiate
reassessment proceedings by the respondents No.2 to 4 is
fundamentally without jurisdiction, besides being arbitrary and the
same deserves to be quashed and set aside.
8. During the course of arguments, a specific question was
posed by the Court to Mr. Bhandari, leaned counsel for the
respondent - Department, as to whether any material or evidence
is on record to show that the petitioner - Company has sold
diesel, as has been alleged in notice(s) dated 20.03.2020
(Annexs.6 & 7). In response to such questions, learned counsel for
the Department responded that Assessing Officer has simply
issued a notice in this regard and the petitioner - Company should
go and satisfy him.
(9 of 10) [CW-5734/2020]
9. Heard.
10. In considered opinion of this Court, the fact that the diesel
has been sold for consideration, is an assertion of fact by the
Assessing Officer and the initial burden thereof lies upon him. The
Assessing Officer is obliged to bring at least prima facie evidence
before this Court to satisfy that the exercise of jurisdiction is legit,
particularly when this Court is seized of the matter and has stayed
the proceedings.
11. The respondents have simply filed a preliminary reply and
application under Article 226 (3) of the Constitution of India
without filing any reply or response to the assertions so made by
the petitioner - Company. Even the issues raised by the petitioner
has not been touched upon. Mr. Bhandari without joining the
issue, however, insisted that petitions be dismissed as not
maintainable.
12. So far as the judgments cited by Mr. Sunil Bhandari are
concerned, this Court is of the view that there is no absolute bar
on exercise of jurisdiction under Article 226 of the Constitution of
India. It is a settled preposition of law that exercise of writ
jurisdiction is subject to self-imposed restriction and each case has
to be examined in light of facts and law.
13. Even for taking a final view, as to whether these petitions
should be entertained or not or the petitioner should be asked to
participate in the proceedings the respondents are required to
place some material, at least for invocation of jurisdiction.
14. Having perused the material available on record and upon
considering the submissions so made by rival counsel, this Court is
of the prima facie opinion that exercise undertaken by the
respondents on the allegation that the petitioner - Company has
(10 of 10) [CW-5734/2020]
sold diesel is not based on any cogent-evidence or material;
respondents No.2 to 4 are attempting to conduct a fishing and
roving enquiry.
15. The powers of reassessment or escaped assessment cannot
be exercised in the manner attempted to by the respondents No.2
to 4.
16. The applications under Article 226 (3) of the Constitution of
India in each case are rejected.
17. List these matters after four weeks.
18. The respondent may (if so desired) file a response/reply to
the notices issued by this Court by the next date of hearing.
19. The interim order dated 24.07.2020 shall continue till further
orders.
(DINESH MEHTA),J.
133 to 143-A.Arora/-
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