TMI Blog2017 (4) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... situated - The learned Court took note of various principles in this regard and held that even imposition of tax more than once cannot be prevented nor prohibited under the Constitution. If that be the position, we see no reason or ground to hold the provision to be ultra vires or unreasonable. Whether interest can be levied in the matter of late payment of entry tax under the Entry Tax Act, by virtue of the provisions of the Bihar Finance Act, and, with the aid of Section 8 of the Entry Tax Act? - Held that: - If Section 8 of the Entry Tax Act is analyzed, it would be seen that it makes applicable the provisions of the Bihar Finance Act to the Entry Tax Act in the matter of assessment, reassessment, collection and enforcement of payment of tax and penalty payable by a dealer under the Bihar Finance Act. Nowhere in the provisions of Section 8 is there any mention of recovery or imposition of interest - in the absence of there being any specific provision authorizing the revenue to assess interest under the Entry Tax Act and in the absence of Section 8 of the Entry Tax Act contemplating a provision for recovery of interest, recovery of interest is not permissible and to that exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaken under Section 33 of the VAT Act is permissible after a period of four years in view of the provision of Section 31 of the VAT Act? - Held that: - Section 31 of the VAT Act contemplates a provision for assessment or reassessment of tax which has escaped turn over and Section 33 provides for assessment of tax based on audit objection. However, a perusal of Section 31 would go to show that when proceedings are held under Section 31, period of limitation of four years from the expiry of the date of original order is indicated therein, but the last part of the Section provides that in a case where the dealer has concealed, omitted or failed to disclose such sale or purchase or input tax credit, so far as may be applicable, the same shall be decided in accordance to as if the proceeding under this sub- section was a notice under Section 27. This Section 27 provides for assessment of a dealer not filing return. It is a case where the proceedings were held against the petitioner after issuing notice under Section 27 and in this provision, there is no provision for issuing notice within four years. This Section only contemplates that the proceedings shall be completed within a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted. It is said that the Corporation receives crude oil which is imported into the State of Bihar, enters Barauni where the Corporation has its Oil Refinery and after undertaking certain manufacturing process, the crude oil is converted into various petroleum products, like High Speed Diesel, Petrol, Kerosene oil etc. The products manufactured in the Barauni Oil Refinery is from the crude material received from outside Bihar and then sent to the Branch in Patna primarily through a pipeline. Products are also sold directly from Barauni to various other marketing companies including the Nepal Oil Corporation from the Raxaul Depot. However, as far as present petitions are concerned, it is said that the petroleum products, particularly, High Speed Diesel and Petrol are sold by the Corporation to other Oil Marketing Companies also known as OMCs , namely Bharat Petroleum and Hindustan Petroleum, who take the products from the depot of the Corporation situated primarily in Patna and the Oil Marketing Companies thereafter sell the products either to their retail dealers or send it for sale through the Companies Petroleum Outlet. The petitioner, apart from selling the petroleum products t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act read with Section 33 of the VAT Act making a demand for tax based on audit objection dated 4.4.2014, contained in Annexure-1 itself. The petitioner filed show cause explaining the legal position and claimed that by virtue of the powers available under Section 33 of the VAT Act read with Section 8 of the Entry Tax Act, the demand raised is wholly illegal, the action is contrary to certain judgments and challenge was made to the show cause notice. However, the respondents did not accede to the objections, on the contrary, issued another notice on 21.06.2014, vide Annexure-3. This was also replied to and thereafter, a representation was also submitted, vide Annexure-6 on 22.08.2014, but ignoring all these when the impugned order was passed and the demand was raised, vide Annexure-7 on 21.07.2014, the petitions filed. 6. As similar orders and demands have been raised for various periods between 2008-09 to 2014-15, all these orders are challenged in these writ petitions. 7. Challenge to the action is made by contending that under the scheme of the Entry Tax Act, any Scheduled goods which is imported from outside the local area or the State for the purpose of sale and when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence in the payment of petrol to be purchased by a consumer on the basis of two different taxing procedure followed. In order to illustrate the hostile discrimination, it was submitted before us that if Motor Spirit worth ₹ 100 is brought from Barauni Local Area to Patna and when the same is sold to a retailer by the Corporation, the landing price for purchase would be ₹ 124.5 paise after payment of 16% entry tax for entry of goods into the State, and 24.5% as VAT when the product is sold to the retailer at Patna. This is after grant of set off under the second proviso to Section 3(2) of the Entry Tax Act. However, when the same petrol is sold through Oil Companies, i.e. Bharat Petroleum Corporation Limited or Hindustan Petroleum Corporation Limited, the landing price to be paid by the retailer comes to ₹ 144.42 paise. Here, entry tax at 16% is paid by the Corporation when the product enters into the State of Bihar. However, when the petitioner sells the product to any Oil Company after the goods enter Patna, no VAT is payable in view of the exemption granted vide Notification dated 04.05.2006, but when the Oil Company sells the same to its retailer VAT at 24.5% i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted any error in imposing entry tax on the petitioner in view of the provision of sub-section (2) of Section 3 and second proviso thereto, but, according to learned Senior Counsel this judgment only refers to the second proviso of Section 3(2), it does not analyze the second proviso in the backdrop of the requirement of the charging Section, i.e. 3(2), and as this judgment is based on consideration of the second proviso only without taking note of the substantive provision, i.e. Section 3(2), the judgment heavily relied upon by the State for dismissal of the petition will not apply as it does not deal with the matter in accordance with the requirement of law inasmuch as the entire provision has not been taken note of. He further argued that this judgment rendered by a Division Bench of this Court is sub-judice in a Special Leave to Appeal pending before the Supreme court, and, therefore, ignoring the aforesaid judgment and holding it to be not applicable, the matter be decided. 15. Sri Arvind Datar further to demonstrate the discriminatory nature of the provisions so also the disastrous effect of its implementation invited our attention to a judgment of a Division Bench of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned action taken is unsustainable. It was argued that based on audit objection, such an action is unsustainable. It is said that Section 33 of the VAT Act or any provision thereto has not been incorporated into the Entry Tax Act and, therefore, with the aid of Section 8, the assessment cannot be reopened. In support thereof, reference was made to a judgment of this Court in the case of The Union of India Versus The State of Bihar Ors. [2012 (4) PLJR 616], to argue that the provisions of Section 33 of the VAT Act are not incorporated into the Entry Tax Act and, therefore, the provisions of Section 33 of the VAT Act cannot be made applicable. 18. Finally, the last ground canvassed was that the product brought into the local area by the Corporation after its sale to the other Oil Companies is neither consumed or used within the local area, on the contrary, the product is taken out of the area without any consumption or use by the Oil Companies, they sell it to the retail dealers who take it out to another local area and sell it there and in view of this, there being no use or consumption of the product within the local area of Patna after its sale; no entry tax on the product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o of Section 3(2) of the Entry Tax Act has been negated by a Division Bench of this Court. They took us through the aforesaid judgment to say that once the question is already considered and rejected by a co-ordinate Bench of this Court, the same is a binding precedent and the set off claimed having been rejected in the case of the petitioner; the question cannot be re-agitated and re- opened now in these proceedings. Learned Senior Counsel argued that only for wriggling out of this obstacle or to avoid applicability of the judgment in the case of CWJC No.21535 of 2011, the petitioner has challenged the constitutional validity of second proviso to Section 3(2) of the Entry Tax Act without any basis or any reasonable justification being available. They took us through various judgments in the matter of challenge to a taxing provision, the scope of judicial review with regard to taxing provision, limits to interference into such matters and submitted the provision in question is a reasonable one and merely because it is not to the liking of the petitioner or it operates adverse to the petitioner s liking, it cannot be declared as ultra vires. 22. Sri S. Ganesh, learned Senior Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a method derived by the Corporation on business consideration to save tax etc. For the present, we need not advert more on these considerations. 25. The judgments relied upon by Sri S. Ganesh with regard to constitutional validity were in the cases of Smt. Somawanti and others Versus The State of Punjab and others [AIR 1963 SC 151]; Ganga Sagar Corporation Ltd. Versus The State of Uttar Pradesh and others [AIR 1980 SC 286]; Godfrey Phillips India Ltd. and another Versus State of U. P. and others [(2005) 2 SCC 515]; P.M. Ashwathanarayana Setty and others Versus State of Karnataka and others [AIR 1989 SC 100]; The Twyford Tea Co. Ltd., and another Versus The State of Kerala and another [AIR 1970 SC 1133]; and the judgment of the Karnataka High Court in the case of Gurusiddappa Nurandappa Uppin and etc.etc. Versus State of Karnataka and another [AIR 1981 Karnataka 216], to say that even double taxation is not prohibited under the Constitution and, therefore, in this case where there is only a single taxation, not even a double taxation, the contention of the petitioner to seek declaration of the provision as ultra vires is unsustainable. 26. Sri S. Ganesh submitted that Entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aders (3) Versus State of Maharashtra and others [(2011) 3 SCC 1]; and The State of Madhya Pradesh Versus M. V. Narasimhan [(1975) 2 SCC 377]; and further argued that on the same principle, the provision of Section 33 of the VAT Act gets incorporated into the Entry Tax Act and, therefore, reopening of assessment under Section 33 based on audit objection is permissible. He submitted that under the Entry Tax Act, no mechanism for implementing the provisions of the Act, particularly with regard to assessment, collection, payment, recovery etc. are available and, therefore, by incorporating the provisions of the Bihar Finance Act, Section 8 makes the procedural aspect available under the Bihar Finance Act applicable in the Entry Tax Act, which includes both the provisions for recovery of interest and Section 33 of the VAT Act. 28. As far as the judgment in the case of M/s Shree Shanker Ice Cold Storage (supra) on limitation is concerned, learned Senior Counsel Sri S. Ganesh argued that the said judgment will not apply in the facts and circumstances of the present case. He submitted by referring to the law laid down by the Supreme Court in the case of State of U. P. and another Ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 226 of the Constitution is made out and, therefore, the petitions are liable to be dismissed. 30. Having heard learned counsel for the parties at length and on going through various aspects of the matter, we are of the considered view that the following questions arise for consideration in the petitions:- (i) Whether the second proviso to Section 3(2) of the Entry Tax Act is ultra vires to the Constitution? (ii) Whether interest can be levied in the matter of late payment of entry tax under the Entry Tax Act, by virtue of the provisions of the Bihar Finance Act, and, with the aid of Section 8 of the Entry Tax Act? (iii) Whether entry tax is liable to be paid when the goods only enter the local area and after such entry is subjected to sell only without there being any use of consumption of the goods in the local area? (iv) Whether based on audit objection as contemplated under the provisions of Section 33 of the VAT Act, assessment can be re-opened with the aid of Section 8 of the Entry Tax Act? (v) Whether the assessment undertaken under Section 33 of the VAT Act is permissible after a period of four years in view of the provision of Section 31 of the VA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd if it is found that the Statute suffers from madness in its method of implementation, gross disparity, judicial credulity may snap and then only interference should be made. It has been held by the Supreme Court that classification for taxation and uniformity in the application of taxation provision should be done with judicial restraint. In fact, after taking note of various judgments on the issue in question, in paragraphs 50 and 52, the law has been crystallized by the Hon ble Supreme Court in the following manner:- 50. Fine-tuning to attain perfect equality may be a fiscal ideal but, in the rough and tumble of work-a-day economics, the practical is preferred to the ideal, provided glaring caprice or gross disparity does not make the levy arbitrary or frolicsome. Article 14 is not intellectual chess unrelated to actual impact or the wear and tear of life but even-handed justice with some play in the joints. 52. Reference to K.T. Moopil Nair case (1961) 3 SCR 77 : (AIR 1961 SC 552) was made at the Bar to persuade us that unequals cannot be tortured into equality - a vice which stultifies the soul of Article 14 as Anatole France exposed in his sardonic epigram that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events, self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability. Laws regulating economic activity should be viewed differently from laws which touch and concern freedom of speech and religion, voting, procreation, rights with respect to criminal procedure, etc... judicial deference to legislature in instances of economic regulation is explained by the argument that rationality of a classification depends upon local conditions about which local legislative or administrative bodies would be better informed than a court. The lack of perfection in a legislative measure does not necessarily imply its unconstitutionality. It is rightly said that no economic measure has yet been devised which is free from all discriminatory impact and that in such a complex arena in which no perfect alternatives exist, the court does well not to impose too rigorous a standard of criticism, under the equal protection clause, reviewing fiscal services. In G.K. Krishnan v. State of Tamil Nadu, (1975) 2 SCR 715 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual is not sufficient to interfere but hostile treatment or hostile discrimination should be established showing unreasonable, discriminatory attitude of the State between the persons similarly situated. 38. That being the principle governing the standard of judicial scrutiny with regard to a taxing provision which is claimed to be ultra vires, and, when we analyze the grievance of the petitioner in the backdrop of the aforesaid provision, we find that the petitioner claims the provision to be ultra vires mainly on account of differential or discriminatory treatment in the matter of non-grant of set off. It is not petitioner s case that the provision is beyond the powers available to the State to legislate on the subject in question. It is neither their case that it has been incorporated in violation to any provision of the Constitution which prohibits enactment of such a provision. It is primarily their case that it discriminates; the procedure is unreasonable resulting in the price of the petroleum product to be borne by the consumer to be different when sold through another Oil Company. The primary purpose of this provision is to grant set off to such of the assessees, who ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule VII. Both these Entries are distinct and independent of each other and the Constitution permits imposition of tax separately under both these heads and if taxation are differently permitted under both these Entries, merely because in the matter of imposition of one of the taxes under one of the Entries, if set off against a tax payable under another entry is not granted, we are unable to hold that such an act or provision is unreasonable or ultra vires. The petitioner, in our considered view, seems to have come out with this ground of ultra vires only to somehow get over the judgment of this Court in the case of Indian Oil Corporation Ltd. Versus State of Bihar Ors. [Civil Writ Jurisdiction Case No.21535 of 2011] decided against the petitioner by a co-ordinate Bench of this Court. The Bench in the aforesaid judgment has taken note of the provisions of Section 3(2) and the second proviso thereto and after relying upon a judgment of the Supreme Court in the case of Associated Cement Companies Ltd. Versus State of Bihar Ors. [(2004) 7 SCC 642] rejected petitioner s argument. The learned Court considered the matter in the following manner:- The matter before us is sli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he claim made by the petitioner to say that they are not liable to pay entry tax deserves to be dismissed on account of the fact that similar issue has already been considered in the case of the present petitioner themselves and rejected by this Court, as indicated hereinabove in CWJC No.21535 of 2011. 42. That apart, we find that recently, the Constitution Bench of the Supreme Court in the case of Jindal Stainless and another Versus State of Haryana and others [AIR 2016 SC 5617] had considered certain aspects in this regard. Hon ble Justice Dr. D. Y. Chandrachud in the aforesaid judgment from paragraph 585 onwards has laid down certain principles pertaining to judicial review of a tax legislation in the backdrop of plea of discrimination or arbitrariness. It has been held after taking note of various provisions of the Constitution and the judgments in the case of Moopil Nair v. The State of Kerala [AIR 1961 SC 552) and Ramjilal v. Income Tax Officer, Mohindargarh [AIR 1951 SC 97] that a taxing legislation can be impugned on the following three grounds: (i) lack of legislative competence; (ii) violation of a prohibition under a specific article of the Constitution; or (iii) repu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles laid down in the case of Federation of Hotel and Restaurant Association of India v. Union of India [AIR 1990 SC 1637] is taken note of wherein it has been held that taxing laws are not outside the purview of Article 14. However, having regard to the wide variety of diverse economic criteria that go into the formulation of a fiscal policy, the legislature enjoys a wide latitude in the matter of selection of persons, subject-matter, events etc. for taxation. It is held that rigors of discrimination is less in a taxing statute and while examining the provision on allegations of discrimination, existence of hostile discrimination should be strictly analyzed and exercise of extremely wide discretion are available to the legislature in this regard. That is the principle applicable while evaluating taxing law which is said to be discriminatory in nature. 44. If we analyze the impugned provision in this backdrop of the law and principles, it would be clear that the petitioner alleges discrimination only because the price of petrol, which is paid by the consumer, varies, and therefore, this amounts to hostile discrimination. In our considered view, this cannot be a ground for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as defaulted in making payment of instalments under the first proviso of the said sub-section, the dealer shall, for such failure or default, pay, in addition to the amount of tax, an amount by way of simple interest calculated at the rate of one and a-half per cent for each calendar month or part thereof on the amount of such tax. 47. According to the petitioner, under the Entry Tax Act, there is no provision for levy of interest, but the provision of Section 39 (3) is made applicable by virtue of the powers or the provisions of Section 8 of the Entry Tax Act. It is the case of the petitioner that as Section 8 does not specifically provide for recovery of interest and, therefore, with the aid of Section 39(3), interest cannot be imposed, whereas it is the case of the revenue that the language of Section 8 would show that the entire provisions of the Bihar Finance Act stands implanted into the Entry Tax Act with regard to recovery, assessment, collection and enforcement of payment of tax and penalty which includes the provision for recovery of interest as contemplated under Section 39(3) of the VAT Act and, therefore, the interest can be levied. 48. It was argued by the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construed but that rule of strict construction is not extended to the machinery provisions which are construed like any other statute. The machinery provisions must, no doubt, be so construed as would effectuate the object and purpose of the statute and not defeat the same. (See Whitney v. IRC, 1926 AC 37: 42 TLR 58, CIT v. Mahaliram Ramjidas, (1940) 8 ITR 442: AIR 1940 PC 124: 67 IA 239, India United Mills Ltd. v. Commissioner of Excess Profits Tax, Bombay, (1955) 1 SCR 810: AIR 1955 SC 79: (1955) 27 ITR 20, and Gursahai Saigal v. CIT, Punjab, (1963) 3 SCR 893: AIR 1963 SC 1062: (1963) 48 ITR 1). But it must also be realised that provision by which the authority is empowered to levy and collect interest, even if construed as forming part of the machinery provisions, is substantive law for the simple reason that in the absence of contract or usage interest can be levied under law and it cannot be recovered by way of damages for wrongful detention of the amount. (See Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji, AIR 1938 PC 67: 65 IA 66 : 67 CLJ 153 and Union of India v. A.L. Rallia Ram, (1964) 3 SCR 164, 185-90: AIR 1963 SC 1685). Our attention was, however, drawn by Mr Sen to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing upon the judgment in the J. K. Synthetics Ltd. (supra), that a provision for charging and levying of interest is a substantive law and in the absence of there being any specific provision in the Central Sales Tax Act providing for levy of interest, the same could not be done. While doing so, provision of Section 9 (2) of the Central Sales Tax Act was taken note of. Section 9(2) of the Central Act which was considered by the Supreme Court reads as under:- 9. (2) Subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowered to assess, reassess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, reassess, collect and enforce payment of tax, including any penalty, payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s tax was a State sales tax. But Section 9(2-A) makes no reference to interest. 12. There is no substantive provision in the Central Act requiring the payment of interest on Central sales tax. There is, therefore, no substantive provision in the Central Act which obliges the assessee to pay interest on delayed payments of Central sales tax. 53. In paragraph 13 thereafter, it is held that the provision relating to interest can be employed by the States Sales Tax Authorities while implementing the Central Act only if a substantive provision is available in the Central Act and assessment of interest was held to be illegal in the aforesaid case. 54. In the present case also, the legal position, in our considered view, is identical to what was considered by the Supreme Court in the case of India Carbon Ltd (supra). If Section 8 of the Entry Tax Act is analyzed, it would be seen that it makes applicable the provisions of the Bihar Finance Act to the Entry Tax Act in the matter of assessment, reassessment, collection and enforcement of payment of tax and penalty payable by a dealer under the Bihar Finance Act. Nowhere in the provisions of Section 8 is there any mention of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd if we go through the amended Section, we find that the provision has been included for survey, assess, reassess, collect and enforce payment of tax, interest, fine and penalty payable under the VAT Act. The very fact that the words, interest and fine have been incorporated by amendment in 2015 clearly shows that prior to this amendment, which was brought into force on 06.05.2015, there was no provision for recovery of interest under the Entry Tax Act. 57. As far as levy of interest is concerned, this issue has also been decided by this Court in CWJC No.19512 of 2010 [M/s Shree Shanker Ice Cold Storage Versus The State of Bihar Ors.] and the issue has been decided in the following manner:- That leaves us with the third question whether the petitioner is liable to pay interest imposed by the assessing authority. Section 8 of the Act of 1993 empowers the assessing authority to collect or enforce payment of tax and penalty and for that purpose they may exercise all or any of the powers assigned to them under the Bihar Finance Act, 1981. Section 8 of the Act of 1993 refers to recovery of tax and penalty alone. The Act of 1993 does not envisage recovery of interest on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , reassessment, recovery of tax and penalty, but not interest, and that being the position, another question involved in the matter, i.e., question no.(iv), can also be addressed at this stage itself. Question No. (iv) 61. At this stage before adverting to consider Question No.(iii) it may be appropriate to consider question No.(iv) as it can be decided on the basis of the same legal principle and provision discussed with respect to question No.(iii). 62. Question No.(iv) formulated pertains to whether with the aid of Section 33 of the VAT Act, based on audit objection, assessment could be reopened and action taken. It was the case of the petitioners that Section 33 of the VAT Act will not apply for reopening assessment pertaining to Entry Tax Act. If we take note of the provisions of Section 8 and its interpretation, which has been discussed hereinabove, we find that the authority empowered to assess, reassess, collect and enforce payment of tax and penalty by a dealer under the Bihar Finance Act is also empowered under the Entry Tax Act to assess, reassess, collect and enforce payment of tax and penalty payable under the Entry Tax Act and for that purpose, they are furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consumed in other local areas. However, it is for the dealer to prove at the relevant stage to the satisfaction of the assessing authority that the sale was for the purpose of taking out the goods to the other local areas or goods were re-exported and were not for the purposes of consumption or use. Therefore, the first point urged on behalf of the petitioners succeeds and it is held that the respondent-authorities have committed a serious error of law in coming to the aforesaid conclusion. 64. In the aforesaid judgment, the underline portion clearly shows that for asserting the contention that the goods after entering the local area is neither used or consumed in the local area, it is for the dealer to prove at the relevant stage to the satisfaction of the assessing authority that the sale was for the purpose of taking out the goods to the other local area or goods were exported and they were neither used or consumed in the local area. This burden is to be discharged by the assessee. 65. Thereafter in a subsequent judgment in the case of M/s. Escorts Limited (supra), this Court again considered this question. After taking note of the principles laid down in the case of Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence and documents in support of their contention and they were given a date for their appearance to do so on 24.06.2014. In reply to this notice Annexure-3 dated 21.06.2014, petitioner vide Annexure-4 on 27.06.2014 submitted their reply and made a vague assertion and did not again produce any evidence. However, again they filed another reply on 22.08.2014 vide Annexure-6 and it is in this reply that certain averments were made to say that the goods brought by the petitioner from Barauni to Patna was sold to Oil Marketing Companies from their Patna terminal and thereafter, the goods sold to the OMCs was never used or consumed into the local area, but they were taken over by the OMCs to 17-18 districts of Bihar. Except for filing certificates dated 14.08.2014, 13.08.2016 submitted by the Bharat Petroleum Corporation Limited and Hindustan Petroleum Corporation Limited, no cogent evidence or material was adduced to substantiate this factual aspect of the matter and as held in the case of Hindustan Lever Ltd. (supra) and M/s Escorts Limited (supra), this question is a mixed question of law and fact and as rightly submitted by the learned Senior Counsel Sri S. Ganesh that the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Section 33 provides for assessment of tax based on audit objection. However, a perusal of Section 31 would go to show that when proceedings are held under Section 31, period of limitation of four years from the expiry of the date of original order is indicated therein, but the last part of the Section provides that in a case where the dealer has concealed, omitted or failed to disclose such sale or purchase or input tax credit, so far as may be applicable, the same shall be decided in accordance to as if the proceeding under this sub- section was a notice under Section 27. This Section 27 provides for assessment of a dealer not filing return. It is a case where the proceedings were held against the petitioner after issuing notice under Section 27 and in this provision, there is no provision for issuing notice within four years. This Section only contemplates that the proceedings shall be completed within a period of two years from the date of initiation. Accordingly, we see no reason to interfere on this ground. That apart, this ground was never challenged either before the Assessing Officer in the objection filed and we further find that when initially certain ex parte assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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