TMI Blog2021 (6) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... er expiry of more than four years from the alleged date of demand notices. In the present cases, the notices of demand have been communicated after expiry of the period of limitation for assessments but certainly within the period of limitation for recovery of demands. As per the order sheets, the notice for hearing for the purposes of assessment were issued under form JVAT 302 pursuant to which the petitioner appeared through his counsel with books of account and other documents /statutory forms but notice of demand was not issued to him, though they were prepared, corresponding entries were made in register VI and also in the dispatch register in continuity but were not dispatched to the petitioner and it has been stated in the counter affidavit that at best it is a clerical error of non- dispatch of the demand notices which may have happened due to inadvertence. Time limitation - HELD THAT:- Passing of order of assessment and issuance of demand notice are two different stages. Passing of assessment order is followed by verification of payments made by the assessee , preparation of demand notice, entry made in dispatch register and issuance of demand notice to the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side the Demand Notice bearing no. 7123 allegedly dated 12.03.2014 which has been served upon the petitioner on 3rd August, 2018, as contained in Annexure-2, directing the petitioner to make payment of disputed amount by 13th August, 2018 especially because the said demand notice has also been passed antedated and beyond the period of limitation as stipulated under the Jharkhand Value Added Tax, 2005; (iii) For issuance of an appropriate writ(s)/ order(s)/ direction(s), including Writ of Mandamus directing the Respondent No. 1 to hold enquiry and fix responsibility upon the responsible officers for passing antedated order dated 12.3.2014 and initiate appropriate disciplinary proceeding against said officers in accordance with law. In W.P. (T) No. 4178 of 2018 (i) For issuance of an appropriate writ(s)/ order(s)/ direction(s), including Writ of Certiorari, for quashing/setting aside the assessment order allegedly dated 16.2.2013 pertaining to the assessment year 2009-10 (VAT Proceeding) as contained in Annexure-4, and declaring the said assessment order being void ab-initio especially because the said assessment order has been passed antedated and beyond the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In W.P. (T) No. 4173 of 2018 (i) For issuance of an appropriate writ(s)/ order(s)/ direction(s), including Writ of Certiorari, for quashing/setting aside the assessment order allegedly dated 16.2.2013 pertaining to the assessment year 2009-10 (CST Proceeding) as contained in Annexure-4, and declaring the said assessment order being void ab-initio especially because the said assessment order has been passed antedated and beyond the period of limitation of three years as prescribed under the Jharkhand Value Added Tax Act, 2005; (ii) For issuance of further appropriate writ(s)/ order(s)/ direction(s), including Writ of Certiorari for quashing/setting aside the Demand Notice bearing no. 14233 allegedly dated 16.2.2013 which has been served upon the petitioner on 3rd August, 2018, as contained in Annexure-3, directing the petitioner to make payment of disputed amount by 13th August, 2018 especially because the said demand notice has also been passed antedated and beyond the period of limitation as stipulated under the Jharkhand Value Added Tax, 2005; (iii) For issuance of an appropriate writ(s)/ order(s)/direction(s), including Writ of Mandamus directing the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the JVAT Act, 2005, assessment order is to be passed within three years after the end of tax period in respect of which or part of which tax is assessable. (ii) Thus, for the period in dispute, the assessment order should be passed on or before 31.03.2014 but admittedly, demand notice allegedly dated 12.03.2014 has been served upon the petitioner on 03.08.2018 which itself demonstrates that the entire assessment proceeding including demand notice has been passed ante dated by manipulating the records by the respondent authorities. On the point that there was no notice/knowledge about date of hearing on 12.03.2014 -the date of assessment order and demand notice. (iii) From bare perusal of the entire order-sheet as annexed by the Respondents ( Annexure-B, page-17 of counter affidavit in WPT No. 4170/2018 ) it would clearly evident that although appearance on behalf of the petitioner on 12.03.2014 has been recorded, and, assessment proceedings were allegedly completed on the said date, but, petitioner has no knowledge of passing of assessment order due to which the petitioner did not appear on the said date otherwise, he would have put his initial on the said dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terthought statement by stating that it is a clerical error of non- dispatch of the demand notice which may have occurred due to inadvertence . (x) That in context of the above, petitioner is placing reliance of the decision of the Hon ble Supreme Court passed in the Case of State of A.P. Vs. M. Ramaishtaiah reported in (1994) 93 STC 406 wherein under similar facts of the case, the Hon ble Apex Court has held that in absence of proper explanation for delay in service of notice, it shall be presumed that order has not been made on the date it purports to have been made . (xi) The aforementioned decision of the Hon ble Supreme Court has been followed by the Hon ble Odisha High Court passed in the Case of M/s. Delhi Foot Wear Vs. Sales Tax Officer Ors. reported in (2015) 77 VST 146 and Hon ble Jharkhand High Court in the case of M/s. Gaurang Alloys and Iron Ltd. Vs. The State of Jharkhand Ors. Reported in (2013) 63 VST 354 (Jhar.) (xii) Further, petitioner is placing reliance upon the judgment of Hon ble Kerala High Court passed in the Case of Government Wood Works Vs. State of Kerala Ors. reported in 1987 SCC Online Ker 697 wherein it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal before Joint Commissioner of Commercial Taxes, Dhanbad Division, dhanbad in terms of Section 79 of the JVAT Act, 2005 read with Rule 47 of the JVAT Rules, 2006 or, Revision before Commissioner of Commercial Taxes, Jharkhand at Ranchi under Section 80 of the JVAT Act, 2005 read with Rule 47 of the JVAT Rules, 2006. d) That as per aforesaid provisions, an assessee has to file its appeal within a period of thirty days from the date of communication of demand notice and similarly, for the revision, the limitation period is prescribed as ninety days and the filing of appeal/revision beyond such period is subject to showing of Sufficient reasons before the respective authority. (xvi) That further, the impugned orders and demands have been given light of the day on 03.08.2018 and thus, the said date shall be deemed to be the effective date of the impugned order. (xvii) Further, if a Right which is recognized by the State is violated then the state provides a remedy. The Legal Maxim Ubi Jus Ibi Remedium means Where there is a right, there is a remedy . But, in these cases the petitioner is remediless as the petitioner has already surrendered its regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned in the order sheet dated 03.08.2018, so question of antedated Assessment order demand Notice does not arise at all and also the Assessment order is well within the period of Limitation. The Assessment order dated 16.02.2013 was passed subsequent to two hearing on 04.02.2013 (Partial hearing) 16.02.2013 Demand was also raised on same date that is 16.02.2013 (Annexure-D,E F). v. That Section 51 of the JVAT Act is also relevant for the purpose of the present cases. The same reads as under : Period of limitation for Recovery of Tax-Notwithstanding anything contained in any law for the time being in force, no proceeding for recovery of any amount under sub sections (7) and (8) of Section 43 and sub section (6) of Section 47 shall be initiated after the expiry of twelve years from the date of the relevant assessment. Provided that when an appeal or revision has been filed, the period of limitation shall run from the date on which the amount due is finally determined. vi. It would also be worthwhile to state herein that the Assessing Officer who passed the assessment order was transferred and relieved from the Jharia Circle on 15.09.2014 whereas the Assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notices are antedated which has been done by manipulating the records and consequently, the assessments having been done beyond the statutory period, though antedated, are void ab initio. Learned counsel has also referred to Section 43(4) of the JVAT Act, 2005 read with Rule 27 of the JVAT Rules, 2006 to indicate that under normal circumstances, 30 days time is provided for payment of tax demand. 10. The second point argued is that the action of the respondents has caused serious prejudice to the petitioner. For this he has referred to Rule 38 (3) of JVAT, Rules to submit that a dealer is required to maintain the records for the period of five years in respect of each assessment year and accordingly the petitioner has not retained the records for the assessment years, 2009-10 and 2010-11 and under such circumstances the petitioner has been left remediless against the impugned assessment orders. It has been submitted that the petitioner is not in possession of any records or documents to contest the alleged demands raised by the impugned assessment orders as more than five years have elapsed from the end of the assessment years, 2009-10 and 2010-11. 11. Admittedly, the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and notices for the period 2009-10, both CST and JVAT, the petitioner applied for certified copies of the assessment orders and challenged the assessment orders and demand notices alleging antedating to save the period of limitation to pass the assessment orders which expired on 31.03.2013. The petitioner annexed the assessment orders and demand notices along with the writ petitions but the entire order-sheets were not annexed. The assessment orders not only indicated appearance of the advocate of the petitioner during the assessment proceedings but also production of entire books of accounts and other documents which were duly accepted by the assessing officer for both CST and JVAT proceedings. In the CST proceedings the assessing officer only rejected the claim of e-1 sales by the petitioner for want of statutory forms i.e. e-1 form and form C. Apart from that certain penalty was imposed on account of delay in statutory compliance. In the JVAT proceedings the assessing officer only rejected the claim of sales return in absence of credit notes. Apart from that certain penalty was imposed on account of delay in statutory compliance/statutory non- compliance. Period 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e nature of ex-parte proceedings/orders. 17. In the counter affidavit, the State has brought on record, not only the attendance filed by the concerned Advocate on the date of assessment order, but also the entire order sheet of the assessment proceedings which records the appearance of the counsel even on the respective date of assessment orders and conclusion of hearing. The respective order-sheets indicate filing of attendance and records quantification of tax/ penalty and directs for issuance of demand notices after verification of the payments already made. The order sheets also record that the assessment orders have been passed in separate sheets. The assessment orders also record appearance of the counsel of the petitioner along with books of account of the petitioner and other documents which reflects passing of assessment orders after consideration of the books of accounts and other documents of the petitioner. 18. The petitioner has filed rejoinder in WPT NO 4173/18 relating to the period 2009-10 (CST) and in WPT NO. 4175 /18 relating to the period 2010-11 (VAT) and has submitted that although no separate rejoinders have been filed in other two cases , the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the books of accounts and other documents of the petitioner were never produced before the assessing authority for consideration on the date of passing the assessment orders . After the respondents produced the attendance of the counsel who appeared before the Assessing Authority on the dates of assessments, the petitioner has tried to meet the same by filing rejoinder and completely denied the appearance of the petitioner/his counsel before the assessing authority , without explaining as to how the books of accounts etc. were examined by the assessing authority without their production by the petitioner/his counsel. As the petitioner is in complete denial about the participation of the petitioner /his counsel in the assessment proceedings, no affidavit of the concerned counsel has been filed to explain as to what happened in the assessment proceedings on the date of hearing. The order-sheets and the assessment orders clearly demonstrate that the assessment orders were passed on the same day as mentioned in the impugned orders of assessments. There is enough material on record, as indicated above, that the petitioner had appeared before the assessing Authority on the date of passi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, corresponding entries were made in register VI and also in the dispatch register in continuity but were not dispatched to the petitioner and it has been stated in the counter affidavit that at best it is a clerical error of non- dispatch of the demand notices which may have happened due to inadvertence. It has also been mentioned in the counter affidavit that the headquarters of the respondent department issued a general order on 03.07.2018 with regard to pre-GST period cases pertaining to claim of refund and in course of examination of all cases the case of the petitioners came to light and an order dated 3.08.2018 was drawn which indicated that as per the records, the demand notices are not served and accordingly it was directed to serve the demand notices through e-mail fixing the date of payment dated 13.08.2018. It has also been mentioned in supplementary counter affidavit that the dealing clerk, namely Sri Ashok Kumar Srivastav was succeeded by another dealing clerk Sri Brij Kumar with effect from 17.11.2014 and he was also succeeded by another dealing clerk Sri Sanjiv Kumar Jha with effect from 29.08.2015 onwards and the department has taken steps to fix the responsibili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation about passing of the order of assessment is conveyed to the assessee through service of demand notice and upon receipt of demand notice the assessee applies for certified copy of the assessment order. It is further not in dispute that the period of limitation to challenge the assessment commences from the date of service of demand notice and not from the date of passing of the assessment order. 27. Rule 17 of JVAT Rules deal with Notice of Demand and Excess Payment. It provides that a notice of demand or Notice of excess payment shall be in Form JVAT 300 and notice of demand under special mode of recovery shall be in Form JVAT 301. In this case we are concerned with notice of demand of tax and penalty in Form JVAT 300. Subsection (3) provides that if any dealer makes an application with a court fee stamp of ten rupees, after service of Notice in Form JVAT 302 for any period, but before the issue of notice of demand in Form JVAT 300 asking for a copy of order of assessment/penalty/interest or any other order concerning with the demand notice, a copy of such order may be supplied to him, along with the Notice of Demand. It also provides that even if the demand of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted. The demands arise due to non-production of certain statutory forms or rejection of certain claim of sales returns on account of non-production of corresponding credit notes. During the course of assessment proceedings also no prayer was made seeking adjournment for production of any further documents or records. It is also not the case of the petitioner that any statutory form/ documents were received by the petitioner after the conclusion of the assessment proceedings. Thus, there is no requirement of further inspections/audit/verifications of the records of the petitioner by any authority in terms of rule 38 as the same have already been inspected, verified and accepted at the time of assessment itself. So far as merit of the assessment orders are concerned, none of the documents of the petitioner were rejected and whatever submissions were made by the petitioner on the basis of records were accepted by the assessing authority. In spite of the production of entire records the claim of the sales return could not be substantiated by the petitioner and certain claims of e-1 sales were rejected on account of want of statutory forms. Accordingly, no prejudice has been caused t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Supreme Court reported in (1994) 93 SCC 406 (State of Andhra Pradesh vs. M. Ramakikshtaiah Co), the Hon ble Supreme Court was of the view that in absence of any explanation whatsoever from the side of the Revenue, it has to be presumed that order was not made on the date purported to have been made and that it could have been made after expiry of prescribed four years period. In the said case, there was no explanation whatsoever from the side of the Revenue as to why there was delay in communication of the order which was passed on 06.01.1973 and was served upon the assessee on 21st November, 1973. The Hon ble Supreme Court was themselves of the view that if there had been a proper explanation it would have been a different matter. iv. The said judgment reported in (1994) 93 SCC 406 was followed by Hon ble Andhra Pradesh High Court in the case reported in ( 2005) 142 STC 496 as in the said case also there was no explanation for delay in dispatching the order either in the records or otherwise as no counter was filed. The said two judgments were followed by Hon ble Orissa High Court in the case reported in 2014 SCC Online Ori 340 (M/s Delhi Foot Wear vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner was recorded, but the assessment order was not passed on the purported date. Plea of the respondents that notices duly issued and entered in the dispatch register were kept in the office was also rejected by holding that the same was not reliable as at several places, several blank spaces and numbers have been left obviously for the purpose of filling up later so as to insert dispatch of the notices from back date. In the present cases, the impugned assessment orders are not ex-parte proceedings and have been passed after due participation of the petitioner through his counsel and upon production of books of accounts etc as fully explained above. It has been mentioned in para 6(s) of the counter-affidavit that the assessing officer who passed the assessment order was transferred and relived on 15.09.2014 after passing the assessment orders and as such the aspersion made by the petitioner is unfounded. It has also been stated that all the documents maintained in the office particularly register VI and process register are showing the corresponding entry in continuity and at best it is a clerical error of non- dispatch of the demand notice which may have happened due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the said period does not affect its validity. The Hon ble Kerala High Court held as follows: Any authority on which power is conferred, the exercise of which power would affect the rights of parties, is to communicate its order to the party against whom the order would operate. The mere preparation of an order or even keeping the order signed in the files of the office would not render it an effective order, an order which is operative. The exceptions are cases where there is requirement of pronouncing the orders and they are pronounced on notified dates. Then irrespective of the actual presence or otherwise of the parties, notice to the parties is assumed. In other cases, if the authority making the order fails to communicate the order, the order could not be said to have been made, for communication of such order is an essential part of making such order. This is naturally so, for any authority who writes out an order and signs it is free to change it at any time before it is communicated. It is not final at all, for the authority may become wiser on information supplied to it or otherwise and may choose to change the order at any time before it is despatched to the party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tension of time was rejected but was not communicated. In this background the prejudice caused to the assessee was considered and was held that such a decision was found to affect the rights of the assessee as it prevented the assessee from taking effective steps to file return within the statutory period. The said two judgments do not apply to the facts and circumstances of this case as the orders of assessments are a quasi-judicial order passed after hearing of the petitioner, followed by issuance of demand notices as per the provision of JVAT Act itself and the assessee has statutory remedies against the orders of assessments whose limitation commence from the date of receipt of the demand notices and not from the date of the assessment orders. In the present cases the order sheets reveal that the date on which the impugned orders of assessments were passed, the petitioner not only appeared through an advocate but even its liability was quantified and mentioned in the order sheets after passing the orders of assessment in separate sheets. 33. As a cumulative effect of the aforesaid findings, the writ petitions being devoid of any merit, are hereby dismissed. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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