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TMI Blog2015 (5) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... dly attaching the bank accounts. This habit has also been narrated for the past period i.e. for the months of January, February, March and April. The behaviour of the Assessing Officer is evident from the order passed by the Commissioner, Commercial Taxes, which is at Annexure-4 dated 16th September, 2014. Thus, even for a previous period i.e. January, February, March and April, 2014 as he has passed ex-parte order, of assessment, the order of very same officer was quashed and the matter was remanded. The said officer is consistent in commissioning his mistakes and, therefore, another ex-parte order has been passed for the months of May, June and July, 2014. This petitioner is also consistent in preferring revision application before the Commissioner, Commercial Taxes along with stay application. But, this time revision application as well as the stay application was pending before the Commissioner, Commercial Taxes; arguments canvassed by both the sides, are over and since long, the judgment has been kept reserved by the Commissioner, Commercial Taxes in a revision application in which scrutiny assessment order was passed by the Assessing Officer for the months of May, June and Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing aside similar type of error committed by the Assessing Officer, who has passed the attachment order of the bank accounts vide order dated 10th December 2014 which is at Annexure-8 to the memo of the petition. 5. Counsel appearing for the respondents-State submitted that after passing the scrutiny order by the Assessing Officer for the months of May, June and July, 2014 as no stay has been obtained, no illegality has been committed by the said Officer by attaching the bank accounts vide order dated 10th December, 2014, which is at Annexure-8 and hence, this writ petition (Tax) may not be entertained by this Court. 6. Having heard both the sides and looking to the facts of the case we hereby quash and set aside the order dated 10 th December, 2014 passed by the respondents authority, which is at annexure-8, mainly for the facts and reasons: I. The petitioner is a limited company, who is paying huge tax regularly since last several decades and this petitioner is paying huge tax to the Central Government approximately Rs. 11,000 crores and to the State Rs. 995 crores annually. This is not a flyby- night company. II. It further appears from the facts of the case that for the mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ually. Attachment to the bank accounts should not be a routine phenomena. It shows weakness of the mind. Whenever any company is not in a position to pay the tax or is deliberately avoiding the payment of the taxes for a longer time or the order passed by the authority has not been complied with without any justifiable reason or whenever an assessee is not paying the tax after several demand notices and orders, then attachment order can be passed, but, looking to the facts of the present case it appears that this petitioner has availed the efficacious alternative remedy. The scrutiny order passed by the Assessing Officer has been challenged in accordance with law. Previously also, similar order passed by the Assessing Officer has been quashed vide order dated 16th September, 2014 and further guidance has also been given to the said officer vide order dated 5th December, 2014 which is at Annexure-7 to the memo of the petition. Similarly, for the year 2011-12 also this Assessing Officer has hurriedly attached the bank accounts before the statutory period, in preferring appeal, was over. VII. Hon'ble Bombay High Court in the case of The Director of Income Tax(Exemption), Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein this Court had inter alia directed the revenue that no recovery of tax should be made before expiry of the time limit for filing an appeal before the higher forum has expired. The Court also had directed that when the bank account has been attached the revenue would not withdraw the amount unless it has furnished a reasonable prior notice to the assessee to enable the assessee to seek recourse to a remedy in law. The action of the petitioner revenue in not only attaching the bank account but withdrawing the money from the bank was before the expiry of the time limit for filing appeal was only with a view to foreclose the option of respondent No.2 of obtaining a stay from the Tribunal. The respondent No.2 had received the order of the Commissioner of Income Tax (Appeals) only on 16th November, 2013. Respondent No.2 had 60 days time to prefer appeal there from. However, the petitioner revenue attached the bank account of respondent No.2 on 18th November, 2013 itself i.e. within two days of communication of the order of the Commissioner of Income Tax (Appeals) by respondent No.2. Further, not only the bank account has been attached on 18th November, 2013 but the amounts were fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . IX. As the amount has already been recovered by the respondents- State from the concerned bank we are constrain to pass an order for refund of the order. In fact the petitioner as on today is entitled to get refund. However, instead of passing an order of refund, it will meet the ends of justice, if we give direction to the Commissioner, Commercial Taxes to deliver the judgment in the revision application preferred by this petitioner at the earliest preferably within a period of four weeks from the date of receipt of a copy of the order of this Court. It is a duty of the "State"-within the meaning of the Article 12 of the Constitution of India, not to infructuous the efficacious alternative remedy. It is constitutional duty of every "State"-within the meaning of Article 12 of the Constitution of India that if any assessee is availing statutory remedy by way of appeal or revision, the low ranking officer should not make appeal or revision infructuous. X. The order passed by the Assessing Officer dated 10th December, 2014 at Annexure-8 is under section 46 of the Jharkhand Value Added Tax Act, 2005. The said section for ready reference reads as under: "46. Auction of Seized Good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 19; (f) Any amount of sale proceeds in excess of the amount appropriated towards penalty shall be refunded to the owner of the goods in the manner specified in Rule 19: the release of security deposited under clause (c) of sub-section (5) of Section 70 and refund thereof shall also be in the manner specified in Rule 19." This is a mode of recovery of the value added tax. This special mode of recovery should not be made general by the Assessing Officer. In the facts of the present case, there was no need of the Assessing Officer to take a recourse under section 46 of the Jharkhand Value Added Tax Act, 2005 for recovery of the money from the nationalized bank as per the order dated 10th December, 2014 at Annexure- 8 and it is expected from the very same Assessing Officer that such type of mistakes will not be repeated henceforth. As the amount has already been recovered we are restraining ourselves from passing an order of refund, but, we hereby direct the Commissioner, Commercial Taxes to decide the appeal preferred by this petitioner within a period of four weeks from the date of receipt of the copy of the order passed by this Court. 7. It is high time for the State either ..... X X X X Extracts X X X X X X X X Extracts X X X X
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