TMI Blog2020 (2) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... een shown to have been passed on 16.02.2015. There are force in the claim of the petitioner Company, inasmuch as, if by order dated 27.01.2015 the matter was fixed for 14.02.2015, there was no occasion for showing the next date of hearing as 14.02.2015/16.02.2015. This could have been done only in the event that 14.02.2015 was a non-working day for some reason, and thereafter the first working day was 16.02.2015, which is not the case here and neither stated in the order-sheet. If the matter was heard on 14.02.2015, there is nothing on record to show that it had been heard on that date, and if it was actually heard on 16.02.2015, there is nothing on record to show that the matter was ever fixed for hearing on 16.02.2015 - we cannot, but accept the plea of the learned counsel for the petitioner that this is an ante-dated order to cover up the period of limitation, which fact has not been specifically denied even in the counter-affidavit filed on behalf of the State, though specifically averred in paragraphs 37 to 55 of the writ application. The contention of the learned counsel for the State that the goods in question were not the capital goods prior to 06.03.2007, is not prim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the petitioner Company, the Company was liable to make the payment of Value Added Tax (herein after referred to as 'VAT'), @ 4%, but the assessment of VAT liability of the petitioner Company was made @ 12.5.%, for the assessment year 2006-2007. Admittedly, the tax liability @ 4% had already been discharged by the petitioner Company for the said assessment year. 4.The petitioner challenged the original assessment order before the Revisional Authority in Revision Case No. CC(S) 1126 of 2011. The said revision was disposed of by order dated 19.02.2013, passed by the Commissioner of Commercial Taxes, Jharkhand, Ranchi, remanding back the matter to the DCCT, Jamshedpur Circle, Jamshedpur, to decide the matter on merits afresh and to pass fresh order giving the petitioner a reasonable opportunity of hearing and to produce the relevant documents in support of their claims. The said order was communicated to the DCCT, Jamshedpur, under Memo No. 894 dated 20.02.2013, as is apparent from Annexure-7 to the writ application. 5.The dispute in the present case arises hereafter. The assessment order on remand has been shown to have been passed by the Assistant Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, but the said demand notice was never served on the learned counsel earlier. The case of the petitioner is that all these entries of the dates right from 14.02.2015/16.02.2015 are ante-dated entries. 7.The specific statements of the aforesaid facts have been made by the writ petitioner in paragraphs 37 to 55 of the writ application stating that these insertions have been made in the order-sheet to cover up the period of limitation as prescribed under Section 42(2) of the JVAT Act. 8.It is further case of the petitioner that this ground had been taken before the Revisional Authority also, in his revision filed before the Commissioner, Commercial Taxes, Jharkhand, but the Revisional Authority has not dealt this point in his order dated 04.10.2018 and has disposed of the revision without speaking a word about the ante-dating of the order by the Assessing Authority and making false entries about the service of the demand notice. 9.A detailed counter-affidavit has been filed on behalf of the State, wherein there is no denial to the aforesaid statements of the writ petitioner. In fact as regards the aforesaid statements of the writ petitioner, it is only stated in paragraph 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been brought on record, which speaks for itself, and no useful purpose was going to be served by making any comment thereon. The further submission of the learned counsel for the State is that the goods in question can be said to be capital goods only after the amendment made in the JVAT Act on 06.03.2007, on which date, the earth moving machineries, such as 'Excavator Hydraulic Excavators clampshell, Drojline, Rock Breakers, Mini Excavators, Crawler, Cranes, Wheeled Cranes, Wheel-loaders, Front end loaders, Shovels, Breakhoc and Articulated Cranes and all other similar implements and machineries' have been brought in Schedule-II, Part-B, Entry-25 to the JVAT Act. It is submitted by learned counsel that initially, only 'capital goods' was mentioned in that entry, without specifying the machineries as indicated above. 13.Learned counsel for the State has submitted that accordingly, for the period 01.04.2006 till 05.03.2007, the goods in question could not be treated as the capital goods and the petitioner Company was liable to pay VAT @ 12.5 % and not @ 4%, as claimed by the petitioner. Though learned counsel has justified the order dated 16.02.2015 passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted earlier, the next order in the order-sheet is of the order dated 14.02.2015/16.02.2015, on which it is shown that the matter was heard and the detailed order has been passed separately. The petitioner Company claims that this hearing was never made by the Assessing Authority. 17.We also find force in the claim of the petitioner Company, inasmuch as, if by order dated 27.01.2015 the matter was fixed for 14.02.2015, there was no occasion for showing the next date of hearing as 14.02.2015/16.02.2015. This could have been done only in the event that 14.02.2015 was a non-working day for some reason, and thereafter the first working day was 16.02.2015, which is not the case here and neither stated in the order-sheet. If the matter was heard on 14.02.2015, there is nothing on record to show that it had been heard on that date, and if it was actually heard on 16.02.2015, there is nothing on record to show that the matter was ever fixed for hearing on 16.02.2015. In that view of the matter, we cannot, but accept the plea of the learned counsel for the petitioner that this is an ante-dated order to cover up the period of limitation, which fact has not been specifically denied even in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar implements and machineries in this category . . 20.Initially only the words capital goods were there in entry-25 of the said schedule. The word capital goods have been defined under Section 2(x) of the JVAT Act, which reads as under:- 2(x) Capital goods means plant, machinery, equipment, apparatus, tools, appliances or electrical installation, Pollution /Quality Control Equipments, used in the process of manufacturing, processing of goods for sale or in the mining, provided such purchases are capitalized for their purposes excluding goods mentioned in negative list as in Appendix-I. A plain reading of this definition shows that capital goods includes, machinery, equipment, apparatus, tools, appliances, also used for mining purposes, and prima facie it appears that the goods in question in the present case, i.e., excavators, cranes and its spare parts which are the earth moving machineries, would come within the expression machinery, equipment, apparatus, tools and appliances, used for the mining purposes. 21.In that view of the matter, prima facie we are not agreeable to the submission of the learned counsel for the State that prior to 06.03.2007, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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