TMI Blog2018 (1) TMI 1316X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents: Mr. S K Kapoor, Sr. Advocate Mr. Anand Sen For the State: Mr. Vikash Kumar, SC II, Mr. Sriram Krishna ORAL JUDGMENT In both these writ petitions filed by the petitioner-assessee two different orders of assessment passed for the financial years 2014- 15 and 2015-16 on the same date, i.e. on 09.03.3017 imposing liability under the Bihar Value Added Tax Act, 2005 (hereinafter referred to as the BVAT Act) are challenged and as the facts and questions of law are identical both the petitions are being disposed of by this common order. Petitioner is a Company incorporated under the provisions of the Companies Act, 1956 having its registered office at NTPC Campus, Sivanpur, Nabinagar, Bihar. Petitioner is a registered dealer under the BVAT Act with Registration No. TIN 10176270092 registered with the Commercial Taxes, Aurangabad Circle, Aurangabad. Petitioner is setting up a Super Thermal Power Project of 3x660 MW in Nabinagar in the State of Bihar. It is stated that in the execution of the Project petitioner has entered into three separate contracts (i) for supply of goods procured from outside India (ii) indigenous supply of goods procured within India and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves of the petitioners, namely, Shri Anjan Ganguly, Advocate and their Consultant Shri Anjani Tripathi, appearing and filing documents and making prayer for producing relevant documents like Form-C certificate, the impugned order has been passed by holding that inspite of opportunity granted the assessee has not produced the relevant documents and therefore they have been saddled with tax liability amounting to ₹ 100 crores which are not transit sales but on high sea sales and inter-state sale and the entire transaction is exempt from payment from duty. Accordingly, the first and foremost ground canvassed by Shri Ganeshan, Senior Counsel representing the petitioner-assessee is that the impugned assessment order has been passed without granting adequate and reasonable opportunity of hearing to the petitioner, without considering the relevant documents and even without granting them sufficient opportunity to produce Form-C certificate. Shri Ganeshan, apart from referring to the pleadings made as indicated from paragraphs-13 onwards in CWJC No. 3661 of 2017 referred to Haziri the document recording the memorandum of proceeding held vide Annexure-8 in the records of CWJC No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 74, and 76 of the BVAT Act, learned Senior Counsel for the Revenue argued that the petitioner should be relegated to the alternative statutory remedy available and in support thereof to say that when statutory remedy for appeal is provided, indulgence in the writ petition is not called for, relies upon the following judgments of the Supreme Court:- (i) Zunaid Enterprises vs. State of Madhya Pradesh [(2012) 4 SCC 211] (ii) C.I.T. vrs.Chhabi Dass Agrawal [(2014) 1 SCC 603] In rebuttal to the aforesaid contention of there being existence of statutory remedy, Shri Ganeshan, learned Senior Counsel for the petitioners invites out attention to the judgments of the Supreme Court in the case of Whirlpool Corpn. Vs. Registrar of Trade Marks [(1998)8 SCC 1] and A B L International Limited vs. Export Credit Corpn. [(2004) 3 SCC 55] to submit that when violation of principles of natural justice is writ large, relegating the petitioner to take recourse to the alternative remedy is not required, and in such cases in exercise of writ jurisdiction under Article 226 of the Constitution this Court can interfere. Apart from the aforesaid submissions, learned Senior Counsel for bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department and the customer and also Form-C issued by the vendor. In fact, the Haziri filed on 17.02.2017 Annexure-8 reads as follows: - HAZIRI The above-named dealer is present today i.e. 07.02.17 to attend the hearing for the year 2014-15. In this connection the following documents are submitted. 1) Papers documents related to High-Sea Sale for ₹ 3074951881, like High Sea Sale agreement, Bills raised to customers, Bill raised by foreign suppliers, Bill of Lading, Packing list, Bill of Entry etc MDCC from NTPC 2) List of Purchase along with copy of E-1 . 3) We are also requesting to your good self to allow us one month s time for submission of rest papers documents in connection with assessment for the year 2014-15 two months time for 2015-16 as we have not yet received Form C from the department from customer also. As no C is issued to vendors E-1 is also not received. Sd/ 07.02.2017 Similarly, the Haziri available at Annexure-6 in the record of CWJC No. 3661 of 2017 is the Haziri for 18.02.2017 again for both the years and in this also similar assertions as are made on 07.02.2017 are made with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no specific denial to this assertion in the counter affidavits. In the case of Smt. Naseem Bano vs State of U.P. (AIR 1993 SC 2592), it has been held by the Hon ble Supreme Court that when certain averments are made in the writ petition by a petitioner and if they are not controverted by the respondents, the High Court should proceed on the assumption that averments are admitted by the respondents. In paragraph -11 of the aforesaid judgment it has been held that presumption has to be drawn that averments are admitted. In this case, the respondents have miserably failed to rebut the contention made in the petition and if the aforesaid contentions are correct, we have no hesitation in holding that it is a case wherein relevant documents which are produced are not considered and with regard to Form C document, proper opportunity has not been granted for the submission, in the proceedings were held on 07.02.2017 and 18.02.2017 time was sought for producing Form-C document, month s time was sought for on 18.02.2017 and without passing any order on this prayer, on 25.02.2017 the impugned order of assessment has been passed. Accordingly, in our considered view it is a case wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that that no such documents are available and no high sea sale has taken place. Taking into account all aspect of the matter, we are of the considered view that it is a fit case where instead of relegating the petitioner to take recourse to the statutory alternative remedy interest of justice would be made if it is remitted to the Assessing Officer with a direction to proceed with the assessment afresh in accordance with law. In view of the above we allow both the writ petitions, quash the orders passed by the Assessing Officer and issue the following directions: - (1) Petitioner shall appear before the Assessing Officer along with a certified copy of this order on 6th of March, 2018, produce all relevant document and materials in support of their contention and thereafter the Assessing Officer shall proceed with the assessment and conclude the proceeding in accordance with law after affording opportunity to the petitioner, within a reasonable period of time. (2) It is made clear that it shall be incumbent upon the petitioners to produce all relevant documents in support of their contention on 6th of March, 2018 itself and thereafter it would be in the discretion of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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