M/s. Gaurang Alloys & Iron Ltd v. The State of Jharkhand & Ors
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI 1 W.P (T) No. 7422 of 2012 With W.P (T) No. 7436 of 2012 With W.P (T) No. 7447 of 2012 With W.P (T) No. 7451 of 2012 With W.P (T) No. 7456 of 2012 ------ M/s. Gaurang Alloys & Iron Ltd. Petitioner In All Cases Vs. The State of Jharkhand & Ors. Respondents In All Cases ----- CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MRS. JUSTICE JAYA ROY For the Appellant/Petitioner :M/s.B.Poddar, D.Poddar,P.Poddar, S.K.Prasad For the Respondents : Mr.Ajit Kumar, AAG, Mr.Rajesh Shankar, GA ------ Reportable Dated 16 th April, 2013
Facts
By these writ petitions, the petitioner has challenged the orders passed under Jharkhand Value Added Tax Act, 2005 (JAVT in short) and order passed under Central Sales Tax Act, 1956 (CST in short), which are order dated 20th March, 2009 passed for the assessment year 2006-07 (JAVT), order dated 29th March, 2010 passed for the assessment year 2007-08 (JAVT), order dated nil for the assessment year 2008-09 (JAVT), order dated 29th March, 2010 passed for the assessment year 2007-08 (CST) and order dated 10.3.2011 passed for the assessment year 2008-09 (CST). From the facts metnioned above, it is clear that all these orders were passed in different assessment cases. According to the petitioner, limitation for making the assessment order was upto 31.3.2009, 31.3.2010, 31.3.2011, 31.3.2010 and 31.3.2011 2 respectively. Demand notices in all these cases were served upon the petitioner on one date, i.e. on 31st July, 2012 after delay of 1 year 4 months to 3 years 4 months from purported date of order. The petitioner's contention is that initially petitioner appeared in all these cases before the Assessing Officer, but according to the petitioner, when no next date was fixed by the Assessing Officer on that date, without giving any opportunity of hearing to the petitioner the assessment orders were passed. It is also the contention of the petitioner that in one of the cases, though the petitioner appeared on the last date wherein its attendence is marked but on that date no assessment order was passed in that cases and according to the petitioner, assessment orders were passed ante-dated so as to bring the assessment orders within the period of limitation, which already expired long back. The petitioner's contention is that if, the orders would have been passed on the purported date of order which has been shown in the ordersheet, then the demand notices would have been served within the reasonable period of time. It is also submitted by the
Legal Reasoning
period ( of limitation) ...........”. This Court in the case of M/s. Mecon Limited found that the order in the case was passed only 6 days before the expiry of the period of limitation for making the assessment order and there was an endorsement in the margin of the ordersheet dated 25.1.2007 of despatch of demand notice on 31.1.2007 and that notice was not served upon the assessee, which is a public sector undertaking, upto 25th October, 2009, i.e. for a period of 2½ years. In that fact situation of that case, this Court observed that the possibility of making the assessment order ante-dated cannot be ruled out. 6. We find some force in the submissions of the learned counsel for the respondents that in all cases merely because of the delayed service of notice, presumption of making assessment order ante-dated cannot be drawn. So is the view already expressed by Hon'ble Supreme Court in the case of M.Ramakishtaiah & Co. (supra) and Hon'ble Supreme Court in the said case held, that in absence of any explanation for non- service of the demand notice for such a long period, the Court must presume that the order was not made on the date it purported to have been made. Therefore, the Revenue has every right to submit its explanation for non-service of notice in time. Be that as it may be, in this case admittedly the petitioner used to appear before the authority concerned and even then it appears that in all cases either ex-parte order has been passed or according to the petitioner, though in the 6 ordersheet presence of the petitioner was recorded but assessment order was not passed on the purported date. It is also the stand that all notices of different assessment orders of different dates and years have been served upon the petitioner on one date, i.e. on 31st July, 2012. In view of the above reasons, it may also be presumed that the orders may not have been passed on the purported date. Therefore, in that fact situation and in view of the judgment of Hon'ble Supreme Court followed by the Division Bench of this Court, we may draw the presumption that the orders may not have been passed on the purported date as there is no explanation of the Revenue of non-service of the notices upon the petitioner for such a period of 1 year 4 months to 3 years 4 months. It will be further relevant to mention here that it is not the case of the Revenue that the notices purported to have been issued forthwith after the order of issuance and they returned back and fresh notices were issued which were served upon the petitioner- assessee and it is also not the case of the Revenue that the petitioner avoided the service. Plea of the respondents cannot be believed that, notices duly issued and entered into the Despatch Register were kept in the office for 1 year 4 months to 3 years 4 months and they were used for serving upon the petitioner after such a delay. 7.
Arguments
learned counsel for the petitioner, Shri Biren Poddar, that, in all cases, it has been shown in the ordersheet that the notices were despatched in time, i.e. about 1 year 4 months to 3 years 4 months ago from the date of service of the notices upon the petitioner. Therefore, according to the learned counsel for the petitioner, in fact, when these orders were passed ante-dated after lapsed of the period of limitation for making the assessment order, thereafter, only those demand notices were issued. Learned counsel for the petitioner relied upon the judgment of Hon'ble Suprme Court delivered in the case of State of Andhra Pradesh 3 Vs. M.Ramakishtaiah & Co. reported in (1994) 93 STC 406 (SC), wherein Hon'ble Supreme Court held that “in absence of any explanation whatsoever, the Court must presume that the order was not made on the date it purported to have been made and that it could have been made after the expiry of the period of four years prescribed for passing such an order in revision”. 2. Learned counsel for the petitioner also relied upon the Division Bench judgment of this Court delivered in the case of M/s. Mecon Limited Vs. The State of Jharkhand & Ors. reported in 2012 (3) J.L.J.R 76 = (MANU/JH/0573/2012 in Manupatra), wherein this Court, after considering the judgment of Supreme Court in the case of M.Ramakishtaiah & Co., set aside the assessment orders, where demand notices were not served upon the assessee for a long period. 3. Learned counsel for the respondents, Shri Ajit Kumar and Shri.Rajesh Shankar, vehemently submitted that the petitioner was appearing before the concerned authority regularly and he had even filed attendence in writing, which fact cannot be denied. It may be true that some of the orders are ex-parte orders but because of the fact that the orders were passed ex-parte, it cannot be presumed that the orders were not passed on the date which is mentioned in the order itself. It is also submitted that in one of the cases, petitioner's attendence has been recorded and in that case also, petitioner's contention is that the order is ante-dated. It is submitted that Hon'ble Supreme Court in the case of M.Ramakishtaiah & Co. (supra) held, that in absence of any explanation, the Court may presume that the orders were not made on the date it purported to have been made and it could have been made 4 after expiry of the period of limitation. It is submitted that the issuance of the notice is proved from the endorsement on the ordersheet and entry in the despatch register of the notice on particular dates, which is duly entered in the Despatch Register, which is maintained regularly by the Revenue. It is submitted that because of lapse on the part of the peon in serving the notice, there cannot be the presumption of the order being ante-dated. 4. We considered the submissions of the learned counsel for the parties and perused the facts of the case as well as we looked into the Despatch Register shown by the learned counsel for the Revenue. 5. At the outset, we may say that the Despatch Register shown to us is not a reliable document in view of the reasons that at several places, several blank space and numbers have been left obviously for the purpose of filling up later so as to insert despatch of the notices from back date. Undisputed facts are that the different orders pertaining to the tax under JVAT and CST were passed and it is mentioned in the margin of the ordersheets that the notices were despatched on the date when the orders were passed or a few days thereafter only. Admittedly, these notices were not served upon the petitioner for about minimum 1 year 4 months and maximum 3 years 4 months. There is no explanation by the Revenue as to how these notices were kept by the Department itself for such a long period and that too in a matter of recovery of the tax amount of Rs.16,64,371/- (against JVAT liability for the year 2006-07), Rs.28,49,152/- for the year 2007-08 (JVAT), Rs.34,69,132/- for year 2008-09 (JVAT), Rs.6,93,771/- against CST liability for the year 2007-08, Rs.36,20,224/- for the year 2008-09 against CST liability. 5 Hon'ble Supreme Court in the case of M.Ramakishtaiah & Co. (supra) observed that, “in absence of any explanation whatsoever, the Court must presume that the order was not made on the date it purported to have been made and that it could have been made after the expiry of the
Decision
In view of the above reasons, writ petitions are allowed and the orders under challenge, referred above, are set aside. However, in the facts of the case, we deem it proper to remand the matter to the Assessing Officer, who may proceed to make assessment after giving opportunity of hearing to the petitioner. The petitioner shall appear before the concerned authority on 13th May, 2013. The Assessing Officer 7 may make the assessment expeditiously, preferably by 31st July, 2013. Let a copy of this order be sent to the Commissioner of Commercial Taxes, State of Jharkhand, who may look into the matter and take appropriate action against the guilty persons and with the direction to the Commissioner of Commercial Taxes, State of Jharkhand, to instruct all Assessing Officers and other concerned persons that such lapse should not be in future and in case, such lapse causing huge loss of revenue occurs, then appropriate action be taken against the erring officers and staff. Copy of this order be given to the counsel for the respondent- State. (Prakash Tatia, C.J.) (Jaya Roy, J.) dey