2023 (5) TMI 427 - HC - CST, VAT & Sales Tax

Validity of initiation of review proceedings against the Petitioner-company - absence of requisite sanction being obtained by Commissioner of Commercial Taxes, Jharkhand in terms of the provisions contained under Section 9A(4) of the Bihar Electricity Duty Act, 1948 (as adopted) read with Rules 14(10) and 14(11) of the Bihar Electricity Duty Rules, 1949 - whether the order passed by the Appellate Authority remanding the matter back to the Assessing Authority for de-novo adjudication is required to be interfered with by this Court on the ground that when the very initiation of the proceeding for review was void ab initio and nonest; no jurisdiction could have been conferred by the Appellate Authority to the Assessing Authority by passing order of remand?

The case of the Petitioner is that the very initiation of the review proceedings against the Petitioner by its Assessing Officer is contrary to the provisions of Section 9A(4) of the Electricity Duty Act read with Rules 14(10) and 14(11) of the Electricity Duty Rules, as the proceedings have been initiated by the successor in office of the original Assessing Officer without obtaining previous sanction in writing of Commissioner of Commercial Taxes, and, except for the Assessment Year 2016-17, review proceedings have been initiated beyond the period of limitation of twelve months without obtaining sanction of the Commissioner of Commercial Taxes.

HELD THAT:- According to Section 9A(4), the prescribed authority, to review an order, would be the officer who has passed the order or its successor in office. Section 9A(4) of the Electricity Duty Act is to be read with Rules 14(10) and 14(11) of the Electricity Duty Rules, which clearly prescribe that for reviewing any order other than the order passed by the Commissioner, sanction of the Commissioner in writing is required and such review cannot be made beyond the period of 12 months from the date of passing of the order sought to be reviewed, and, an order can be reviewed by the officer who is successor in office of the officer who has passed the order sought to be reviewed only with previous sanction of the Commissioner even if the order is sought to be reviewed within a period of twelve months.

Aforesaid proposition of law has been authoritatively laid down by the Coordinate Bench of this court in the case of TATA STEEL LIMITED, JAMSHEDPUR, EAST SINGHBHUM VERSUS THE STATE OF JHARKHAND, JOINT COMMISSIONER OF COMMERCIAL TAXES (ADMINISTRATION) , DEPUTY COMMISSIONER OF COMMERCIAL TAXES, COMMERCIAL TAX OFFICER, [2019 (12) TMI 1644 - JHARKHAND HIGH COURT] and the said decision was challenged by the State of Jharkhand before the Hon’ble Apex Court and their S.L.P. has also been dismissed.

There is no substance in the contention of the Respondent-State that in the case of Tata Steel Ltd, this Court remanded the matter back to the Assessing Authority for passing fresh review order. On the contrary, a bare perusal of the said order would reveal that penalty orders were set aside and it was merely recorded that this court has not stopped any authority to exercise his powers permitted under the law.

It is a trite law that an order, which is bad from its inception itself, cannot be cured by subsequent action. In the present case, before the Appellate Authority, the Judgment of this Court in the case of Tata Steel Ltd. was duly placed on record, but despite the said fact, the Appellate Authority, instead of setting aside the order of review as not sustainable in the eye of law, has remanded the matter back to the Assessing Authority for reconsideration. This cannot be endorsed, as reviewing authority cannot be clothed with jurisdiction which it, otherwise, did not have at the time of initiation of review proceedings.

The review orders dated 31.08.2020 and 12.09.2020 as well as the Appellate Orders dated 23.12.2022 in respect of the Period 2012-13, 2013-14, 2014-15, 2015-16 and 2016-17 are set aside - Consequently, penalty amount deposited/recovered from the Petitioner-company, if any, is directed to be refunded/adjusted in future bills towards Electricity Duty.

Application allowed.