M/S J.SONS COMPANY LIMITED, a company registered v. THE STATE OF BIHAR through Principal Secretary

For the respondents: Mr. Piyush Lall, AC to AAG III --- 3 21/12/2009 The petitioner is having his business inside and outside Bihar. He has preferred this writ petition for commanding the respondent authorities particularly the Deputy Commissioner, Commercial Tax (WC), Muzaffarpur, respondent no.3, to issue Form - D-IX which has not been issued on the pretext of non-payment of admitted amount of entry tax. Learned counsel for the petitioner placed 2 reliance upon a judgment of this court passed on

8.5.2008 in CWJC. No.17042 of 2007 (Bihar State Hydro Electric Power Corporation vs. The State of Bihar & Ors.) annexed as Annexure 1 to the writ petition to submit that issuance of statutory Forms cannot be stopped by the taxing authorities on the ground of non- deposit of tax because this is not a permissible mode for realization of tax liabilities. Learned counsel for State distinguished the aforesaid judgment on the ground that that was under the Central Sales Tax Act and in that context the court found that the method prescribed does not authorize withholding of Form-C under the Central Sales Tax. He placed reliance upon provisions in Section 61 of the Bihar Value Added Tax Act 2005 and upon second proviso to Rule 41(3) of the Bihar Value Added Tax Rules 2005. A perusal of the proviso mentioned above discloses that the specified authority if satisfied for reasons to be recorded that the applicant has defaulted in furnishing any return or statement or refused return 3 or has failed to deposit any admitted tax or interest due specified authority shall withhold authentication of such Forms until such time as the applicant furnishes such returns or statement or deposits such tax or interest, as the case may be.

According to learned counsel for the State the figures of admitted tax remaining unpaid have been mentioned in paragraph -11 of the counter affidavit and another reason for withholding authenticated Forms is alleged failure of the petitioner to furnish properly filled up returns as required under the aforesaid Act. Along with the counter affidavit Annexure – A series have been annexed to show that on 7.11.2009 the authorities have issued notices upon the petitioner raising a demand of the amount of tax allegedly due with the petitioner. Learned counsel for the petitioner has submitted that the grounds alleged in the counter affidavit are contested by the petitioner in as much as the petitioner does not accept that there is any admitted tax liability as per returns filed. It is also the case of the 4 petitioner that the returns are properly filled up as required under the Act and the Rules. In our view, the aforesaid dispute as to whether the second proviso to Rule 41(3) of the Rules is attracted in the case of the petitioner or not must be decided by the concerned authority which in this case should be respondent no.3.

Hence, the writ petition is disposed of with liberty to the petitioner to approach the respondent no.3 with all facts and documents in view of our above order as well as in view of notices enclosed with the counter affidavit. Since valuable right of the petitioner to carry on business is concerned, we direct the respondent no.3 to pass an appropriate order in accordance with law particularly on the two issues - (i) - whether any admitted tax liability of the petitioner remains to be unpaid and (ii) - whether the returns filed by the petitioner are in accordance with the Act and the Rules or not, at the earliest and in any case within three weeks of the petitioner’s filing his claim along with necessary documents. It goes without saying that if it is found that the condition in the second proviso to Rule 5 Neyaz/ 41(3) of the Rules is not attracted then in that case the authorities shall forthwith issue authenticated Form – D -IX to the petitioner without any delay. (Shiva Kirti Singh, ACJ.) (Jyoti Saran, J.)