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The Tinplate Company of India Limited Versus The State of Jharkhand, Commissioner­cum­Secretary, Commercial Taxes Department, Deputy Commissioner of Commercial Taxes, Commercial Taxes Officer

2016 (9) TMI 1158 - JHARKHAND HIGH COURT

Validity of assessment order - Bihar Sales Tax Act - Central Sales Tax Act - Form H left out for consideration reassessment proceedings - penultimate sale before export of the goods under Section 5(1) of the CST Act - Held that: - reassessment proceedings ought to have been commenced and completed before expiry of the period of two years from the date of communication of the appellate order. After several years i.e. more than period of one decade, no reassessment order has ever been passed and d .....

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A.G. ORDER Per D. N. Patel, J. 1. This writ petition has been preferred mainly challenging the orders which are annexed at Annexures­ 10 and 11 to the memo of this writ petition. Annexure­10 is an order passed by the Commissioner of Commercial Taxes, Jharkhand, Ranchi in Review Case No. 64 of 2001, which is re­numbered as Review Case No. 771 of 2004, dated 19th February, 2013 and Annexure­11 is demand notice dated 8th March, 2013 on the basis of the reassessment order passed by t .....

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st which, revision applications being Revision Case Nos. 64 and 65 of 1999­2000 were preferred by the petitioner­assessee under Section 46(4) of the Bihar Finance Act, 1981, for CST and BST respectively. 3. The revision application was finally decided vide order dated 23rd June, 1999 (Annexure­1) and the matter was remanded for the assessment to be made on the basis of presentation of documents by the petitioner especially Form­C and Form­F. 4. It is further submitted by the .....

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Commissioner of Commercial Taxes while passing the reassessment order on 18th December, 1999 (Annexure­2 to the memo of this writ petition). So far as BST is concerned, the same was reiterated even for the reassessment proceedings because in revision application, nothing was mentioned about BST. 5. It is further submitted by the learned counsel for the petitioner that against the order passed by the Deputy Commissioner of Commercial Taxes dated 18th December, 1999 which is a reassessment ord .....

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rcial Taxes dated 18th December, 1999, were preferred before the Commissioner of Commercial Taxes. Both these revision applications were disposed of by the Commissioner of Commercial Taxes vide order dated 21st May, 2002 (Annexure­6) mainly on the ground that the assessee has already preferred appeals against the very same order passed by the Deputy Commissioner of Commercial Taxes dated 18th December, 1999. 6. It is also submitted by the learned counsel for the petitioner that now two appea .....

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Annexures­ 7 and 7/1 to the memo of this writ petition. In this order, all types of Forms viz. Form­ C, Form­ F and Form­ H were allowed to be presented by the assessee before the Commercial Taxes Officer and the matters were remanded. 7. Learned counsel for the petitioner has relied upon Section 24 of the Bihar Finance Act, 1981 and submitted that the period of limitation for reassessment after the remand order is passed by the appellate authority is two years. Nothing has been .....

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orders are impugned orders which are at Annexures 10 and 11 to the memo of this writ petition. Neither Annexure­10 nor Annexure­11 has appreciated the appellate orders in Appeal Nos. 244 and 27 of 1999­2000 passed by the Joint Commissioner of Commercial Taxes (Appeals) dated 1st August, 2002 and also without appreciating Section 24 of the Bihar Finance Act, 1981 and, hence, both Annexures­ 10 and 11 deserve to be quashed and set aside. 8. Learned counsel for the petitioner has re .....

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(Annexure­11) has been issued and, hence also, the orders at Annexures­ 10 and 11 deserve to be quashed and set aside. 9. Learned counsel for the respondent­State submitted that initially assessment was made on 6th January, 1999 for the assessment year 1996­97 both for BST as well as CST, thereafter, revision application being Revision Case Nos. 64 and 65 of 1999­2000 were preferred and for limited purpose, remand order was passed to allow the assessee to present Form­ C .....

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se No. 66 of 2001 (for BST); (c) Review Case No. 771 of 2004 against the order dated 23rd June, 1999 passed by the Commissioner of Commercial Taxes; and (d) Two appeals being Nos. 244 and 27 of 1999­2000. It is submitted by the learned counsel for the respondent­State that Revision Case Nos. 64 and 66 of 2001 were disposed of vide order dated 21st May, 2002 (Annexure­6) because Appeal Nos. 244 and 27 of 1999­2000 were pending, but, the case left out was Review Case No. 771 of 200 .....

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mmitted by the respondent­State and, hence, this writ petition may not be entertained by this Court. REASONS: 10. Having heard learned counsels for both the sides and looking to the facts, reasons and judicial pronouncement, we hereby quash and set aside the order at Annexure­10 as well as order/notice at Annexure­11 dated 19 th February, 2013 and 8 th March, 2013 respectively mainly for the following facts and reasons: (i) For the assessment year 1996­97, two separate orders wer .....

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/sale of export under Section 5(1) of the CST Act, whereas, assessee was allowed to present Form­ C and Form­ F before the Assessing Officer. Also in the revisional order finally passed by the Commissioner of Commercial Taxes, there was no reference about BST and the remand order was passed by the Commissioner of Commercial Taxes on 23rd June, 1999 (Annexure­1). (iv) On the basis of this remand order, reassessment order was passed by the Deputy Commissioner of Commercial Taxes on 18t .....

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assessee preferred two separate Appeals being Nos. 244 and 27 of 1999­2000 under Section 45 of the Bihar Finance Act, 1981 for BST and CST respectively before the Joint Commissioner of Commercial Taxes (Appeals). (vi) Over cautious petitioner has also preferred Revision Case Nos. 64 of 2001 and 66 of 2001 against the order dated 18th December, 1999 passed by the Deputy Commissioner of Commercial Taxes. These two revision applications were preferred before the Commissioner of Commercial Taxes .....

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n passed, for which, the assessee­petitioner was allowed to present all types of Forms viz. Form­ C, Form­ F and Form­ H meant for different purposes especially for CST and the matter was remanded. (viii) Nothing has happened thereafter, neither during the period of limitation nor several years thereafter. The period of limitation has been referred in Section 24 of the Bihar Finance Act, 1981. For the ready reference, Section 24 reads as under: 24. Period of limitation for comple .....

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itiated and completed before the expiry of two years from the date of communication of such order to the assessing authority. (emphasis supplied) (ix) In view of proviso to Section 24, the proceedings for reassessment in pursuance of the appellate order or revisional order or reference or review order, has to be initiated and completed before expiry of two years from the date of communication of such order to the assessing authority. Nothing has been brought on record that within the aforesaid t .....

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(Annexures­ 7 and 7/1). (x) It appears that the Commissioner of Commercial Taxes has decided Review Case No. 771 of 2004 on 19th February, 2013 because previously preferred Revision Case No. 64 of 2001 before the Commissioner of Commercial Taxes in the erstwhile State of Bihar was transferred to the Commissioner of Commercial Taxes after bifurcation of the State of Jharkhand, which was re­numbers as Review Case No. 771 of 2004. Much has been argued by the learned counsel for the respond .....

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inly for the reasons that­ (a) Once Appeal Nos. 244 and 27 of 1999­2000 for BST and CST was already decided by the Joint Commissioner of Commercial Taxes (Appeals) vide order dated 1st August, 2002, in which, all the Forms i.e. Form­ C, Form­ F and Form­ H were allowed to be presented by the assessee before the assessing officer, nothing was left out to be decided by the Commissioner of Commercial Taxes in Review Case No. 771 of 2004. (b) After the appellate order is passed, .....

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could have been passed by the respondents, but, no reassessment order has ever been passed finalizing the liability of the petitioner. (c) Looking to Section 24 of the Bihar Finance Act, 1981, the order of reassessment can be passed within a period of two years from the date of communication of the order passed in the appeal/ revision/reference/review, but, no such reassessment order has been passed after 1st August, 2002 i.e. after the appellate order is passed. (xi) The demand notice dated 8t .....

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order dated 18th December, 1999 passed by the Deputy Commissioner of Commercial Taxes, but, the order passed in Appeal Nos. 244 and 27 of 1999­2000 for passing fresh order of assessment has been ignored. The matter has been remanded by the appellate authority. The officer, who has issued demand notice, has not read the operative part of the appellate order. The direction has been given by the appellate forum to the assessing officer to reassess on the basis of the decision rendered in the ap .....

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ond limitation. It appears that against three assessment orders for the period 1990­91, 1991­92 and 1992­93, the respondent preferred three appeals i.e. JUSTA 56/97­98, 57/97­98 and 58/97­98 before the Joint Commissioner, Commercial Taxes (Appeal), Jamshedpur Division, Jamshedpur. The Appellate Authority passed a common order on 31­8­1998 and communicated the decision vide Memo No. 2177 dated 5­11­1998 to the assessing authority and other officers. The ass .....

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it was clearly time­barred. 16. From the records, it appears that the appellate order passed on 31­8­1998 was communicated to the assessing authority vide Memo No. 2177 dated 5­11­1998. The respondent obtained a certified copy of the same in January 1999. Memo No. 204 dated 6­8­2003, as referred to by the counsel for the State is the second time communication, which was only a reminder. Thus, the appellate order having been communicated to the assessing authority vide .....

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