M/s. Tata Steel Limtied v. The State of Jharkhand & Ors
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(T) No. 1953 of 2021 With W.P.(T) No. 1892 of 2021 With W.P.(T) No. 1893 of 2021 With W.P.(T) No. 1894 of 2021 With W.P.(T) No. 1895 of 2021 With W.P.(T) No. 1906 of 2021 With W.P.(T) No. 1907 of 2021 M/s. Tata Steel Limtied --------- ..… Petitioner (All cases) Versus The State of Jharkhand & Ors. ..… Respondents (All cases) --------- CORAM : HON’BLE MR. JUSTICE APARESH KUMAR SINGH HON’BLE MR. JUSTICE DEEPAK ROSHAN --------- For the Petitioner : M/s. Kavin Gulati, Sr. Advocate, Sumeet Gadodia, Advocate [W.P.(T) No. 1953 of 2021] Ms. Amrita Sinha & Mr. Ajay Aggarwal, Advs [W.P.(T) Nos. 1892,1893,1894,1895, 1906 and 1907 of 2021] For the Respondent : Mr. Sachin Kumar AAG-II Mr. A.K.Yadav, Sr. S.C.-I --------- 16/21.02.2023 Since all these writ applications involve common question of law; as such, all are heard together and disposed of by this common judgment. 2. The petitioner is a company registered under the Companies Act, 1956/2013 and engaged in the business of steel manufacturing since over 110 years and its principal manufacturing unit is at Jamshedpur. 3. In all these writ applications, petitioner has made parallel prayer for quashing the respective Assessment Orders for the periods from A.Y 2011- 12, 2012-13, 2013-14, 2014-15, 2015-16, 2016-17 and 2017-18 and also for prohibiting the respondent from taking any action against it under any provisions of the Jharkhand Entry Tax on Consumption or Use of Goods Act, 2011 or consequential orders pursuant to the respective impugned Assessment orders. 4. These applications have a checkered history. In the year 2011, the 2 Jharkhand Entry Tax on Consumption or use of goods Act, 2011 was enacted by the State Government of Jharkhand. Further, a Notification was issued by the State Government of Jharkhand providing that the Act would come into effect from the date of its Notification. By issuing another Notification the State Government of Jharkhand created “Jharkhand Trade
Legal Reasoning
Development Fund” for a period of five years. Various parties challenged the constitutional validity of the Act before the High Court. Vide interim order, the High Court directed the State Government of Jharkhand not to take any coercive steps against the petitioners/assesses therein. 5. On 03.04.2012, the High Court struck down the Jharkhand Entry Tax on Consumption or Use of Goods Act, 2011 as being ultra-vires Article 301 on the ground that the impugned levy was not compensatory in character. The High Court did not decide the issue of violation of Article 304(a) of the Constitution. 6. On 19.11.2012, the respondent No. 1 filed Special Leave Petitions before the Hon'ble Supreme Court of India challenging the aforesaid judgment of this Court. The Hon'ble Supreme Court admitted the Special Leave Petitions but did not stay the impugned judgment. During pendency of the aforesaid Appeal being Civil Appeal No. 8275 of 2012 filed by Respondent No. 1 in the case of the Petitioner; on 11.11.2016, the Nine Judges Bench of the Hon'ble Supreme Court delivered a judgment in the case of Jindal Stainless Limited v. State of Haryana, reported in (2017) 12 SCC 1. Pursuant to the judgment delivered in the case of Jindal Stainless Ltd., the Hon'ble Supreme Court vide its order dated 22.03.2017 allowed Civil Appeal No. 8275/2012 filed by Respondent No. 1 and set aside the judgment of the High Court. However, the Hon'ble Apex Court gave liberty to the assesses (including Petitioner herein) to contest the issue of violation of Article 304(a) of Constitution before the Hon'ble High Court. In those cases where the Assessees were Appellants (where the respective Hon'ble High Courts had upheld the vires of the provisions), the Hon'ble Supreme Court continued the interim orders passed in favour of the Assessees therein against recovery till 31.05.2017, since the Civil Appeal No. 8275/2012 was heard along with other analogues cases as the issue was Pan India. 3 7. On 29.05.2017, The Hon'ble Supreme Court extended the time period up-to 07.07.2017 for filing of writ petitions before the Hon'ble High Court. On 09.10.2017, in Civil Appeal No. 3381 of 1998 (State of Kerala v. Fr. William Fernandez) the Hon'ble Supreme Court held that entry tax can be levied on the goods imported from outside India. Petitioner herein was also a party in that litigation. 8. After disposal of the Civil Appeal No. 8275/2012 filed by Respondent No. 1 by the Hon’ble Apex Court, Show Cause Notices were issued against the petitioner for the respective Assessment Years. The factual details of all these writ applications are as follows:- Writ No. Period SCN dt. Prel. order A.O.dt. Amount W.P.(T) No.1953/21 W.P.(T) No.1906/21 W.P.(T) No.1907/21 W.P.(T) No.1894/21 W.P.(T) No.1892/21 W.P.(T) No.1895/21 W.P.(T) No.1893/21 2011-12 10.5.19 dt. 24.11.2020 1.12.2020 137,78,47,882.60/- 2012-13 10.5.19 24.11.2020 1.12.2020 56,73,17,701.00/- 2013-14 10.5.19 24.11.2020 1.12.2020 49,00,96,782.00/- 2014-15 10.5.19 25.11.2020 1.12.2020 39,65,03,686.00/- 2015-16 10.5.19 25.11.2020 1.12.2020 33,39,98,610.00/- 2016-17 10.5.19 26.11.2020 2.12.2020 29,92,84,627.00/- 2017-18 10.5.19 26.11.2020 2.12.2020 8,72,68,260.00/- (01.04.17 to 30.06.17) 9. Petitioner herein filed writ petition, being W.P.(T) No. 3884 of 2017 before this Court challenging the validity of the Act, inter-alia, on the ground that the said Act is discriminatory and hence violative of Article 304(a) of the Constitution. The said writ petition is pending for consideration of Court. Alternative plea was also raised that since there is no notified ‘Local Area’ in Jamshedpur, therefore no entry tax can be levied at least on the goods brought from outside the State of Jharkhand for use or consumption in Jamshedpur. 4 When the case was taken up on 11.04.2022 after hearing learned counsel for the parties, the following order was passed :- “Let W.P(T) Nos. 1892/2021, 1894/2021, 1895/2021 and 1907/2021 be tagged with the instant matters as they raise common issue relating to initiation of assessment proceedings under Jharkhand Entry Tax on Consumption or Use of Goods Act, 2011. 2. The challenge to the vires of Jharkhand Entry Tax on Consumption or Use of Goods Act, 2011 was upheld by this Court vide judgment dated 03.04.2012 passed in W.P (T) No. 5696/2011. After the decision of the Apex Court in the nine judges Constitution Bench judgment in the case of Jindal Stainless Ltd. & Another versus state of Haryana and others [2016 (11) Scale 1], Civil Appeal No. 8275/2012 preferred by the State of Jharkhand and other analogous appeals were decided by the Division Bench of the Apex Court vide judgment dated 22.03.2017 (Annexure-3) holding as under: “We may also mention at this stage that when the matters were argued before the Nine Judges' Bench, certain other aspects were also argued. Primarily, three kinds of issues were taken by the assessees which are to the following effect: (1) Whether the entire State can be treated as 'local area' for the purposes of entry tax? (2) Whether entry tax can be levied on the goods which are directly imported from other countries and brought in a particular State?. (3) In some statutes enacted by certain States, there was a provision for giving adjustment of other taxes like VAT, incentives etc. paid by the indigenous manufacturers and it was contended by the assessees that whether the benefits given to certain categories of manufacturers would amount to discrimination under Section 304. The Nine Judges' Bench while answering the reference deemed it appropriate to leave these questions to be agitated before the regular Bench. That is how these matters are posted before this Bench and it is agreed that the aforesaid issues are the main issues to be decided.
Decision
During the hearing of arguments, counsel for both sides submitted that since the main challenge in the writ petitions, which were filed by the writ petitioners before the High Court, was predicated on the law laid down by the Constitution Bench in 'Atiabari Tea Co. Ltd. (supra), the High Court essentially confined its discussion only on “compensatory tax theory”, as propounded in the aforesaid judgment so the High Courts looked at the issue by only keeping in mind the principle propounded in the aforesaid judgment and decided as to whether the tax imposed by a particular statute is compensatory in nature or not. Thus, when other issues are to be dealt with, as indicated above, we find that in many cases there is no adequate factual foundation and there is no discussion in the impugned 5 judgments as well. It is also agreed by counsel for both the sides that in the absence thereof, it may not be possible for this Court to decide these issues. According to us, in the aforesaid scenario, appropriate course of action would be to permit the appellants to file fresh petitions by May 31, 2017, raising the aforesaid issues with necessary other background constitutional/statutory issue which arises for consideration. factual any or All these appeals are, accordingly, disposed of with the aforesaid liberty granted to the appellants. The interim orders which were passed by this Court and which are continued in these appeals shall continue till May 31, 2017. It will be open to the appellants to seek interim orders. We make it clear that the High Courts shall deal with the interim prayers of stay on their own merits without being influenced by the fact that the stay order was passed in these cases or has been extended by this Court as aforesaid. The High Courts, at that time, shall also consider the import and effect of the reference answered by the Nine Judges' Bench.” 3. The Assessees were granted liberty to approach the jurisdictional High Court to file a fresh petition by 31.05.2017 raising the three issues referred to therein with necessary factual backgrounds or any other constitutional / statutory issue which arise for consideration. By an order dated 29.05.2017, interim orders which were passed by the Apex Court were continued in those appeals till 7th July 2017.Thereafter, the present Assessee has preferred a fresh writ petition i.e. W.P (T) No. 3884/2017 which is pending consideration. The present writ petitions relate to quashing of the Assessment Orders and Review Assessment Order for different Assessment Years starting from 2011-12 till 2017-18 under the Act of 2011. The Assessment Order dated 01.12.2020 (Annexure-13) was revised by the impugned Review Assessment Order dated 24.03.2021 in W.P (T) No. 1953/2021. In the rest of the writ petitions, no Review Assessment Order has been passed. 4. Respondents have issued demand notices dated 03.03.2022 bearing no. 5408 enclosed in I.A. No. 2339/2022 in W.P (T) No. 1953/2021, asking to deposit an amount of 52,98,46,636.00 by 22.03.2022. Similar notices have been issued in respect of other Assessment Years which have also been brought on record through the respective interlocutory applications in the analogous writ petition. 5. Learned Senior Counsel for the petitioner has argued in the lead matter W.P (T) No. 1953/2021 as common issues of law and facts are involved in all the writ petitions. He has also brought to the notice of this Court that reminder notice has been issued on 23.03.2022 bearing no. 72225 asking the petitioner to deposit the total amount as indicated therein by 18.04.2022, failing which coercive steps could be taken, if there is no interim order in his favour. The grounds of challenge are primarily three fold: (i) The first and second ground of challenge both stem out from the provisions of section 11(5) and the proviso thereto of the Act of 2011. Section 11 is quoted hereunder. the petitioner 6 “11. Assessment of tax: - (1) If the prescribed authority is satisfied, without requiring the presence of the registered assessee or the production of accounts or other evidence by him; that the returns furnished by such assessee in respect of any period are correct and complete, he shall proceed to assess the amount of the tax due from such assessee, on the basis of such returns furnished. (2) (a) If the prescribed authority is not satisfied without requiring the presence of the registered assessee or the production of accounts or other evidence that the returns furnished by such assessee in respect of any period are correct and complete, he shall serve on such assessee a notice in the prescribed manner requiring him, on a date, time and at a place to be specified therein, either to attend in person or to produce or cause to be produced any evidence on which the assessee may rely in support of such returns. (b) On the date specified in the notice or as soon afterwards, as may the prescribed authority, after hearing such evidence as the registered assessee may produce and such other evidence as the prescribed authority may require on any required cause, shall assess the amount of tax due from such assessee. (3) If an registered assessee having fumished returns in respect of a period fails to comply with all the terms of the notice under sub-section (2) or if the accounts and other evidence produced by him are, in the opinion of the prescribed authority, incorrect, incomplete or unreliable, either wholly or partly, the said authority shall proceed to assess to the best of his judgment, the amount of tax due from such assessee. (4) If the registered assessee fails to file returns in respect of any period, the prescribed authority shall, after giving the assessee reasonable opportunity of being heard, assess, to the best of his judgment, the amount of tax payable, from such assessee. (5) If upon information or otherwise, the prescribed authority is satisfied that reasonable grounds exist to believe that any assessee or any person other than a registered assessee has been liable to pay tax in respect of any period, and has nevertheless willfully failed to apply for registration, the prescribed authority shall, after giving the assessee or such person reasonable opportunity of being heard, assess to the best of his judgment the amount of tax, if any, due from such assessee or any other person in respect of such period and all subsequent periods and the prescribed authority shall direct that the assessee or any other person, to pay by way of penalty in addition to tax so assessed, a sum not exceeding fifty rupees for every day of the period during which the assessee or any other person failed to apply for registration or an amount equal to the amount of tax assessed, whichever is higher; Provided that no proceeding for such assessment shall be initiated except before expiry of two years from expiry of the period to which it relates; 7 Provided further that a proceeding initiated under this sub-section shall be concluded within a period of two years from the date of initiation.” the period up therefore suffers 5. Learned Senior Counsel for the petitioner has urged that no satisfaction has been recorded by the prescribed authority showing reasonable grounds to believe that the Assesee or any other person other than the registered person has wilfully failed to apply for registration, though being liable to pay taxes and thus, is required to be proceeded under Section 11(5) for assessment of tax, penalty and interest as well. The requirement of alleging specific acts of wilful violation on the part of the petitioner is completely lacking in the to show-cause notice dated 10.05.2019. For 22.03.2017 i.e. the date of the judgment of the Apex Court in Civil Appeal No. 8275/2012, the Act of 2011 was not on the statute book as having been held as ultra vires the constitutional provision. The from erroneous initiation of proceedings assumption of jurisdiction which goes to the root of the matter and is amenable to the writ jurisdiction as is also held in the recent judgment of the Apex Court in the case of Magadh Sugar & Energy Ltd. Versus State of Bihar and Others [2021 SCC OnLine SC 801, Para- 25 to 29] ii. The proceedings initiated under show-cause notice dated 10.05.2019 which is common in all the writ petitions covering different Assessment Orders, is barred by limitation in view of proviso to Sub Section (5) of Section 11 of the Act being after expiry of two years from the period to which it relates reckoning the starting period of limitation from the date of the judgment of the Apex Court passed in Civil Appeal No. 8275/2012 i.e. 22.03.2017. Respondents in their counter affidavit have wrongly placed reliance on the date of starting of limitation period as 09.10.2017 relying upon the judgment of the Apex Court in the case of State of Kerala and others versus Fr. William Fernandez Etc. [2017 SCC OnLine SC 1291]. Learned Senior Counsel for the petitioner has referred to paragraph 30 and 33 in the case of Fr. William Fernandez Etc. (Supra) dealing with the Civil Appeals of the State of Bihar and State of Jharkhand and concerning the Bihar Tax on Entry of Goods under the Local Areas Act, 1993. According to the petitioner, the said judgment has no application to an assessment proceeding under the Act of 2011. To make the things more clear, learned senior counsel for the petitioner has also referred to the explanation to the definition clause of ‘Importer’ under section 2(h)(i) which reads as under. “(i) “Importer” means a person who makes or causes to be made any entry of scheduled goods, whether on his own account or on account of a principal or any other person, into a local area from any place outside the State for consumption or use therein or who owns such goods at the time of entry into the local area; Explanation- For the purpose of this Act import shall not include imports from outside the country.” Decision in the case of Fr. William Fernandez Etc. (Supra) relates to the applicability of the Bihar Act, 1993 on import from foreign countries. The present Act of 2011 has now consciously 8 excluded import from outside the country from the purview of the Act. As such, initiation of assessment proceeding is barred by limitation and void in law. iii. Learned senior counsel for the petitioner has then referred to the reply of the petitioner to the show-cause dated 10.05.2019 at Annexure-6 dated 10.06.2019 where the petitioner had raised preliminary objection to the initiation of the proceedings. It has been categorically stated that the order dated 24.11.2020 rejecting the preliminary objection of the petitioner are antedated since the same do not bear the counter signature of the representative of the petitioner Company and is a significant departure from the consistent practice followed in all such orders passed in the same proceedings on different dates such as orders dated 20.01.2020, 27.01.2020, 07.02.2020, 14.02.2020, 24.02.2020, 05.03.2020, 14.03.2020, 26.08.2020, 06.10.2020, 09.10.2020, and 09.11.2020 i.e. the preceding date of rejection of preliminary objection i.e. 24.11.2020. The order rejecting the preliminary objection was never served upon the petitioner to enable him to avail of the revisional remedy under Section 21 of the Act within the stipulated period of 90 days. In fact, the Assessment Order was passed immediately thereafter on 01.12.2020 which merged the order dated 24.11.2020 into it leaving the petitioner with no opportunity to avail of alternative remedy of revision. 6. Learned senior counsel for the petitioner submits that the order rejecting the preliminary objection came to the knowledge of the petitioner only after issuance of certified copy of the entire order sheet. The proceedings have thus been vitiated for lack of fairness on the part of the Assessing Officer. For all these reasons, writ petition is maintainable under Article 226 of Constitution of India and fit to be allowed by remanding the matter to the Assessing Authority for a fresh decision after taking into account all the points of law and facts with supporting documents adduced by the petitioner. 7. Learned senior counsel for the petitioner has submitted that under section 20 of the Act of 2011, any such appeal is entertainable by the authority only upon deposit of 20% of the tax assessed or such amount of tax as appellant may admit to be due from him whichever is greater. Learned counsel for the petitioner has referred to page 233 of the writ petition containing the breakup of the demand for different Assessment Years starting from 2011-12 till 2017-18. It is also submitted that in the present writ petition W.P (T) No. 1953/2021, the Assessment Order contained an apparent error on record as the entire turnover of HSD Oil is assessed to tax, though only 15% of the value of the transaction of HSD Oil was liable to tax under the Act of 2011. This being pointed out by the Assessee, Review Assessment Order was issued on 24.03.2021. The breakup of the tax indicated at Annnexure-15 at page-233 including that of HSD Oil and other than HSD Oil would come to Rs. 84.74 crores and odd. Learned senior counsel for the petitioner submits that conscious of the rider of statutory deposit while preferring an appeal under section 20 of the Act, writ petitioner is ready and willing to deposit 20% of the tax amount as assessed for the respective period 2011-12 till 2017-18 i.e. about Rs. 16.94 cores before this Court as the condition for interim protection. It may be kept in an interest 9 bearing account. Learned senior counsel for the petitioner has, on the basis of the aforesaid submission, prayed for an interim protection. 8. Counter affidavit and rejoinder affidavit have been filed in all the writ petitions. However, learned counsel for the Respondent State has prayed for time to address the court on any convenient date when the court is functioning in physical mode. 9. As prayed for on behalf of the Respondent State, list these cases on 09.05.2022. 10. In the meantime, subject to deposit of an amount of Rs. 17.00 crore before the learned Registrar General of this Court by 20.04.2022, no coercive steps shall be taken against the petitioner in respect of the impugned demand notices in the respective writ petitions relating to relevant Assessment Years. The amount so deposited shall be kept in an interest bearing account.” 10. From the pleadings on record it is evident that on 10.05.2019, Show Cause Notices were issued by Respondent No. 3 under Section 11(5) of the Act r/w Rule 14 of the Rules in Form JET-301 for the relevant period; details of which are given in the tabular chart herein above as to why assessment /penalty may not be imposed upon the Petitioner for its failure to get registered under the Act. However, SCN was received by the Petitioner on 22.05.2019 and the Department has produced an internal order dated 10.05.2019 by which proceedings were initiated. 11. On 10.6.2019, petitioner replied to SCN issued by Respondent No. 3 that Section 11(5) is not applicable as there is no element of mens-rea in not taking registration and there was no assertion in the SCN in this regard. Petitioner further stated that action u/s 11(5) is barred by limitation. On 09.01.2020, a Notice was issued by Respondent No. 4 to Petitioner stating that the reply filed by Petitioner on 10.06.2019 is not satisfactory hence it should either provide any stay order or appear for hearing with data in respect of inter-state purchase of goods during relevant period. On 20.01.2020, petitioner replied to Respondent No. 4 that no reason has been assigned as to why the averments made in reply dated 10.06.2019 has been held to be untenable. Petitioner requested for an opportunity for personal hearing to satisfy Respondent No. 4 regarding merits of its submissions. On 16.03.2020, Petitioner submitted a detailed Reply to Respondent 10 No. 4. It also made the following submissions: (i) Entry tax cannot be levied on HSD oil, inasmuch as, it has been used directly in manufacturing. (ii) In absence of any ‘local area' in Jamshedpur, no tax can be levied on scheduled goods entering in Jamshedpur from outside the State of Jharkhand. Petitioner requested that the proceedings should be kept in abeyance till the disposal of the writ petition by the High Court or in alternative for a personal hearing may be granted before passing any adverse order. On 23.3.2020, in view of global pandemic of COVID-19, Petitioner requested for adjournment of personal hearing fixed on 25.03.2020. On 17.08.2020, Notice was issued by Respondent No. 4 stating that on 24.03.2020 hearing was supposed to be done; however, no hearing took place on that date. Petitioner was given last chance to appear on 26.08.2020 along with records related to assessment of the concerned period and make its submissions. 12. It is contended by learned Senior Counsel for the petitioner that on 10.09.2020, Petitioner filed Preliminary Objections regarding the jurisdiction of the Ld. Assessing Authority to initiate assessment proceedings against the Petitioner. It was specifically submitted that Preliminary Objections should be decided first before proceeding any further. 13. Learned counsel for the petitioner predominantly made following submissions: - (i) Petitioner filed preliminary objections regarding the jurisdiction of the Assessing Authority to initiate assessment proceedings against the petitioner. It was specifically submitted that preliminary objections should be decided first before proceeding any further. (ii) Lack of entry of goods into a “local area”. (iii) Proceedings are barred by time. Further it is not a case of willful failure to apply for registration as litigation relating to challenge to the vires of the Act is pending consideration as on date. (iv) No entry tax can be levied on HSD Oil. (v) Notice and proceedings pursuant thereto are wholly without 11 jurisdiction. Learned counsel for the petitioner submits that all the aforesaid grounds have been taken in the preliminary objection but the same is antedated as the same was passed at the back of the petitioner. Learned counsel reiterated following issues while challenging assessment order/demand notices: - (a) Back dating: The order dated 24.11.2020 is back-dated as it is not mentioned in the Assessment order and the same has never been communicated to the petitioner. Further, since order dated 24.11.2020 was passed after assessment order, thus assessment order has been passed without deciding the preliminary objection. There is no reference in the assessment order regarding rejection of preliminary objection on 24.11.2020. (b) Time Barred: The proceeding-initiated u/s. 11(5) of the Act on 10.05.2019 for the period up-to 31.03.2017 and other assessment years are time barred. (c) Assessing officer pre-judged the whole issue as evident from order dated 10.09.2020. (d) Assessing officer has not at all considered the specific submission regarding lack of applicability of the Act. (e) Amount of tax is inflated. 14. The case of the petitioner is that the assessment order clearly contradicts the averments made in the Counter Affidavit dated 11.05.2022 filed by the State in the case of one Masum Nagesh; in paragraph 6 thereof it was stated that proceedings had commenced in the year 2017. This Counter Affidavit is filed in W.P.(T.) No. 1894 of 2021. This Court by its order dated 20.06.2022, quoted hereunder, directed the Department to explain this anomaly with regard to the date of issue of the first Notice for examining limitation: “One of the grounds raised by the petitioner and referred to in the order dated 11th April, 2022 is of limitation in initiating the proceeding under Section 11(5) of the Act of 2005. The show cause notice is dated 12 10th May, 2019 based on which, the proceedings were initiated and ended up in the assessment order of 1st December, 2020. In the first counter affidavit, in all these writ petitions, this plea has been contested on the ground that the proceedings were within time relying upon the judgment of the Apex Court in the case of State of Kerala and others versus Fr. William Fernandez etc. reported in 2017 SCC online SC 1291 i.e. judgment dated 09th October, 2017. This judgment has also been referred to in the assessment order. The application of the period of limitation from the date of the judgment in Fr. William Fernandez etc. have been strongly contested on certain grounds taken note of in the order dated 11th April, 2022. Now, in one of the writ petitions i.e. W.P.(T) No.1894 of 2021, a reply to the rejoinder of the petitioner has been filed on behalf of the respondent State on 7th June, 2022 sworn by one Maushmi Nagesh, State Tax Officer. At para 6 of this reply, statement relating to assessment year 2014-15 has been made that from perusal of order sheet, it appears that the said proceeding has been initiated in the year of 2017 and the final order has been passed on 1st /2nd December, 2020. This creates a contradiction in the stand of the respondents on the plea of limitation. No document, however, has been annexed in support of the statement made therein. During course of submission, learned AAG-II, appearing in the batch of cases on the part of the State, has also referred to the extension of time period for filing writ petitions by an order dated 29th May, 2017 passed by the Apex Court (Annexure-4). According to him, the impugned notice under Section 11 (5) issued on 10th May, 2019 is therefore within the period of limitation. Be that as it may, in order to explain this contradictory stand, learned AAG-II prays for and is allowed two weeks’ time to seek instruction. Learned AAG-II should be ready with the records of the proceedings. The concerned officer shall remain present with the records of the proceedings. Learned senior counsel prays and is allowed one week time thereafter to file reply, if any. List this case on 14.07.2022.” 15. One Rajendra Nayak then filed a Supplementary Counter Affidavit dated 11.07.2022 in WP(T) No 1894 of 2021 wherein it is conceded in paragraphs 5 and 8 that proceedings were initiated only on 10.05.2019. Thus, a new stand was taken suggesting that since by the order dated 29.05.2017, the Hon'ble Supreme Court had extended the interim orders till 07.07.2017, the period of limitation will run from that date. However, in the Written Submissions filed by the Department in W.P.(T.) No. 1953 of 2021 it is now suggested that since no return was filed there can be no period of limitation. At the same time, the respondents have taken a stand in the Affidavit dated 11.5.2022 (paragraphs 7 and 9) and in the Supplementary Affidavit dated 11.7.2022 paragraphs 11 and 12) in WP(T) No. 1894 of 2021 that the 13 preliminary objections were decided on 10.09.2020. The stand now being taken is diametrically opposite to the stand which was taken in the first affidavit dated 09.07.2021 (paragraphs 15 and 17) filed in WP(T) No 1953 of 2021 wherein it was stated that nothing was decided on 10.09.2020 but the matter was fixed for further hearing on 08.10.2020. Learned Senior Counsel for the petitioner has therefore at the final stage of the arguments apart from other grounds pressed the challenge on the point of limitation in initiating the proceedings under Section 11(5) of the Entry Tax Act, 2011 as it goes to the root of the jurisdiction of the assessing officer to initiate the proceedings. Reliance is placed on the decision of Magadh Sugar & Energy Ltd. Vrs. State of Bihar & Ors. [2021 SCC Online SC 801, para-25 to 29]. Learned Senior Counsel for the petitioner has reflected on the three different stands : (i) In the assessment order dated 1st December 2020 the assessing officer held that the period of limitation commenced from the date of the judgment in the case of State of Kerala Vs. Fr. William Fernandez in Civil Appeal No.3381 of 1998 dated 9th October 2017. (ii) During the proceedings of the case the respondents in their counter affidavit filed in W.P.(T) No.1894 of 2021 by one Masum Nagesh at paragraph-6 thereof taken the stand that the proceedings had commenced in the year 2017. (iii) Pursuant to the specific query made by this Court vide order dated 20th June 2022 to explain the anomaly with regard to the date of issue of first notice for the purposes of counting limitation period in terms provisions of Section 11(5) of the Entry Tax Act, 2011, another supplementary counter affidavit was filed on 11th July 2022 in W.P.(T) No.1894 of 2021. In this affidavit it was conceded at para-5 and 8 that the proceedings were initiated on issuance of SCN on 10th May 2019. (iv) However, a new stand was again taken suggesting that since the Hon’ble Supreme Court has extended the interim orders till 7th July 14 2017, the period of limitation would run from that date. (v) However, in the written submissions filed by the Department in W.P.(T) No.1953 of 2021 it has now been suggested that since no return was filed, there can be no period of limitation. It is submitted that the Department is unclear as to the date of commencement of the limitation period for initiating the proceedings under Section 11(5) of the Entry Tax Act, 2011 under which it is clearly provided that the proceedings can be initiated only within a period of two years from the expiry of the period to which it relates. It is also contended that Section 11(5) relates to the category of dealers who are not registered and is distinct from the category of registered dealers who are statutorily required to file returns in terms of Section 11(1) to 11(4) of the Act of 2011. Learned Senior Counsel for the petitioner referred to Section 10 of the act and submitted that the same relates to default in filing a return in case of a registered assessee or any other person. Therefore, the plea of the learned counsel for the respondents that period of limitation would not apply because of non-filing of the return by the petitioner, an unregistered assessee, is untenable in law. As such, it is submitted that the matter may be remanded to the assessing officer to first decide on the plea of limitation raised by the petitioner since it goes to the root of the jurisdiction of the assessing authority to initiate the proceedings under Section 11(5) of the Act, 2011. It is submitted that therefore the other grounds of challenge as raised by the petitioner and taken note in the interim order dated 11.4.2022 may not be required to be dealt with at this stage as the very initiation of the proceedings is under question on grounds of limitation. 16. Learned counsel for the respondent submits that the order dated 24.11.2020 was passed after hearing the representative of the petitioner on the preliminary objection. The respondent was under no obligation to communicate the copy of the order to the petitioner. The order of assessment was passed after deciding the preliminary objection. Order dated 24.11.2020 is a detailed reasoned order and the submissions made on behalf of the petitioner were considered. Plea of back-dating of the order dated 24.11.2020 is an after-thought of the petitioner. Since the preliminary 15 objection and submission dated 09.11.2020 were considered in detail in the order dated 24.11.2020, as such reference of the same in the assessment order was not warranted. The petitioner initially applied for only the assessment order and thereafter applied for entire order sheet on 17.02.2021 and received the same on 24.02.2021. The certified copy was also supplied immediately which negate the argument of the petitioner that the order dated 24.11.2020 was back-dated. Learned counsel referred the Judgment of the Hon'ble Supreme Court reported in (2008) 12 SCC 292 and contended that the burden of proving malafides is very heavy on the person who alleges it. This heavy burden has not been discharged by the petitioner in these cases. He also referred the judgment of the Hon'ble Supreme Court reported in (2010) 4 SCC 192 to submit that the court should insist upon furnishing of any tangible evidence by the petitioner in support of his allegations of "malus animus" laid against the State. Learned counsel submits that according to the petitioner, since the proceeding was initiated after expiry of two years, so it is barred by limitation in view of proviso to section 11(5). From the list of dates, it is clear that the Act was notified on 15.07.2011 and was declared ultra-vires vide judgment dated 02.04.2012. The Civil Appeal was allowed on 22.03.2017. The notice for the period up-to 31.03.2017 was issued on 10.05.2019, so according to the petitioner it was issued after two years of the expiry of the period to which it relates. Learned counsel contended that the proceeding is not barred by time for the reason that the order dated 22.03.2017 was modified by the Hon'ble Supreme Court vide order dated 29.05.2017. Secondly, no return was filed by the petitioner and as such the period of two years will not apply in the case of the petitioner. He further submits that section 11(5) of the Act deals with the assessment of unregistered assessee who is liable to pay tax but has failed to apply for registration. Section 11(5) has to be read with Section 10 of the Act, which provides for levy of penalty on any registered assessee or any other person, liable to pay tax under this Act who fails to furnish returns or annual return within the prescribed time. As per the scheme of the Act, even 16 unregistered assessee who is liable to pay tax under the Act, is also liable to file return. In the present case, the petitioner has not filed any return nor applied for registration. Thus, the period of two years is not applicable in the case of the petitioner. 17. To the aforesaid contention, he further referred the judgment of the Gujarat High Court in the case of M.H. Khanusiya vs State of Gujrat reported in 2018 SCC OnlineGuj 2191 wherein it has been observed/ held that "The Kerala High Court in the aforesaid decision while considering pari-materia provisions under the Kerala Act has specifically observed and held that limitation apply to the cases where return has been filed by the assessee and the period of limitation not applicable, where no return is filed by the assessee." Learned counsel lastly submits that all these applications should be dismissed. 18. Having heard learned counsel for the parties and after going through several affidavits filed by the State it appears that the State has changed its stand with regard to commencement of proceeding under the Act, as such we feel it proper firstly to deliberate the issue of time barring. It is the Petitioner's case that since the proceedings had been initiated under Section 11(5) of the Jharkhand Entry Tax on Consumption or Use of Goods Act, 2011, proceedings had to be initiated within a period of 2 years from the expiry of the period to which it relates. The first show cause notice in the all these writ applications was issued on 10.05.2019. The judgement of the Supreme Court in Civil Appeal No. 8275/2012 is dated 22.03.2017. It is the Petitioner's case that even if limitation was to be calculated from 22.03.2017, the period of 2 years would expire on 22.03.2019. 19. Interestingly, the department has taken contradictory stands on the issue of limitation. In the Order-Sheet Entry dated 10.05.2019 (Annex. A series / Pg. 9-10 of the supplementary counter affidavit dated 11.07.2022 filed by one Rajendra Nayak in WP. (T) No. 1894 of 2021), the department firstly contended that limitation ought to be calculated from 09.10.2017 i.e., the date of the decision in the case of State of Kerala v. Father William Fernandes reported in (2017) SCC Online SC 1291. The same stand was 17 repeated in the impugned Order dated 24.11.2020 by which the Respondents are said to have decided the preliminary objection. The same stand is repeatedly taken by the Assessing Officer in the assessment orders of the respective periods i.e. 2011-12, 2012-13, 2013-14, 2014-15, 2015-16, 2016- 17 and even for 2017-18 (01-04-2017 to 30-06-2017) i.e. date of limitation commences from the date of judgment in the case of Father William Fernandes i.e. 09.10.2017. It therefore clearly shows complete non- application of mind as to the commencement of limitation period under Proviso to Section 11(5) for initiation of proceedings and misdirected application of the judgment of Fr. William Fernandes to the case at hand falling under the provisions of the 2011 Act. The notice dated 10.05.2019 does not either state that there were reasonable grounds to believe that the petitioner has willfully failed to apply for registration. However, the Petitioners pointed out that the judgement in Father William Fernandes (supra) does not concern with the Jharkhand Act but was concerned with the Bihar Act of 1993 where the only issue dealt with by the Hon'ble Supreme Court was whether the imports from outside the country could be brought to tax under the entry tax legislation or not and that under the Jharkhand Act 2011 imports from outside the country were not taxable at all in view of Section 2(h)(i). The respondents then changed their stand by filing an affidavit of one Masum Nagesh in WP (T) 1894 of 2021 dated 11.05.2022 wherein it was stated that proceedings commenced in 2017 itself. Noticing the above change in stand by the respondents, by Order dated 20.06.2022 respondents were directed to clarify the contradictions in their stand on the issue of limitation. A supplementary counter affidavit was thereafter filed on 11.07.2022 in WP(T) No.1894/2021 by one Rajendra Nayak conceding that the proceedings had commenced only on 10.05.2019 as would be apparent from Para 5 and 8 of the said affidavit. However, in the affidavit now a new stand was sought to be taken by contending that in view of the orders passed by the Apex Court dated 22.03.2017 and 29.05.2017 in CA No.7611/2017 and connected matters, the time to file writ petitions stood extended till 07.07.2017 and consequently the limitation would expire on 07.07.2019. 18 20. Since the issue of limitation goes to the root of jurisdiction of the assessing authority to initiate the proceedings, as such contradictory stands by the respondents in the assessment proceedings and at different stages of the present writ proceedings do give rise to contradiction as to the actual date of commencement of the period of limitation under Section 11(5) of the Entry Tax Act, 2011 for the purposes of initiating the proceedings against the petitioner who was an unregistered assessee. The vires of the Entry Tax Act, 2011 was struck down by the judgment dated 3rd April 2012 rendered in W.P.(T) No.5696 of 2011 in the case of the petitioner and several others. Civil Appeal No.8275/2012 preferred by the State was decided vide judgment dated 22nd March 2017 that means the Act of 2011 was revived on the statute book from that date. The present assessment proceedings pertains to assessment years 2011-12, 2012-13, 2013-14, 2014-15, 2015-16, 2016-17 and 2017-18 and as such the date of commencement of the limitation period under Section 11(5) of the Act is crucial for the purposes of initiation of the proceedings against the petitioner. Petitioner has in the grounds of challenge before this Court taken a specific plea that the proceedings were barred by limitation being beyond the two years period from the date of the judgment delivered by the Apex Court in Civil Appeal No.8275/2012 i.e. 22nd March 2017 since the show-cause notice was issued on 10th May 2019 i.e. after two years. As observed herein above, even for the period 2017-18 (01.04.2017 to 30.06.2017) the Assessing Officer has reckoned the period of limitation as starting from 09.10.2017 the date of judgment in Father William Fernandes (supra) which does not apply to the present proceedings under the 2011 Act. As noticed above, the respondents have been taking shifting and contradictory stands from time to time. Therefore, since the very issue of commencement of limitation for initiation of proceedings under Section 11(5) having come under a cloud which goes to the root of jurisdiction of the assessing officer to initiate such proceedings, it would be proper to remand the matter to the assessing officer to take a fresh decision in accordance with law including on the issue of limitation for initiation of proceedings. Since the matter is being remanded for the above reasons, we 19 consciously refrain from making any comments on the merits of the case or on the question of ante-dating of the order passed on the preliminary objection. 21. Consequently, the Assessment Orders dated 01.12.2020 & 2.12.2020 in respective writ applications are hereby quashed and set aside. 22. Accordingly, all these writ applications are hereby allowed to the extent indicated hereinabove. Pending interlocutory applications, if any, are hereby closed. It is made clear that we have not made any comments on the merits of leviability of Entry Tax upon the petitioner. The amount of pre- deposit of Rs.17 Crores be returned to the petitioner on an application being made before learned Registrar General along with the interest it has earned as per bank rates in view of the order dated 11.04.2022 passed during the proceedings of the case. (Aparesh Kumar Singh, J.) (Deepak Roshan, J.) Fahim/Shamim