TMI Blog2024 (1) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... h the original adjudication order and/or the order by which review proceeding was dropped, it was open for the department including Commissioner to direct the competent authority to prefer statutory Appeal and/or statutory Revision before the competent authority in terms of Section 79 and 80(1) of the JVAT Act. However, in our opinion, it was not open for the Revenue particularly, Additional Commissioner, Commercial Taxes to initiate suo-motu revision proceeding, that too, on the mere filing of a letter by writ petitioner-DCCT. From bare perusal of Section 80(4) of the JVAT Act, it would transpire that the Commissioner may, on its own motion, call for and examine the records of any proceeding in which any order has been passed. In the present case, from the records of the proceeding of Additional Commissioner, it transpires that although Additional Commissioner has recorded in its order that he has perused the records of the assessment proceedings, but there is no such evidence to that effect available in the records. It is pertinent to indicate that the jurisdictional fact of assuming jurisdiction under Section 80(4) of the JVAT Act by Commissioner of Commercial Taxes is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof are being noted herein-below in brief. 5. Respondent No. 1- M/s Ram Kripal Singh Construction Pvt. Ltd. is primarily engaged in the business of carrying out works contract in the State of Jharkhand and other States and is duly registered under the provisions of the Jharkhand Value Added Tax Act, 2005 (hereinafter referred to be referred as JVAT Act, 2005 ). 6. For the Assessment Year 2013-14, an assessment order dated 04.01.2017 was passed by the Assessing Officer i.e., Deputy Commissioner of Commercial Taxes, West Circle, Ranchi and, pursuant to the assessment order, an excess Demand Notice was issued dated 04.01.2017, wherein a sum of Rs. 1,41,73,237/- was determined to be refundable to Respondent No. 1. 7. Similarly, for the Assessment Year 2014-15, assessment order dated 10.01.2017 was passed by Deputy Commissioner of Commercial Taxes, West Circle, Ranchi and even in the said year, an excess Demand Notice dated 16.01.2017 was issued to Respondent No. 1 showing payment of excess tax of a sum of Rs. 6,71,54,829/-. 8. In view of the admitted fact that during Assessment Years 2013-14 and 2014-15, excess tax payment was determined for an amount of Rs. 1,41,73,2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aching the grounds on which review proceedings were initiated for review of the original assessment orders of both the financial years. 13. Respondent-assessee appeared before the D.C.C.T., West Circle, Ranchi i.e. the Adjudicating Authority and filed its detailed reply questioning the very initiation of the review proceedings. 14. The Adjudicating Authority, pursuant to reply filed by Respondent-assessee, after verification of the records including the issues on which review proceedings were initiated, came to a conclusion that in view of limited scope of review jurisdiction, original assessment orders dated 04.01.2017 and 10.01.2017 cannot be reviewed and, accordingly, review proceedings were dropped vide order dated 13.03.2019. 15. Despite dropping the review proceedings, D.C.C.T. West Circle, Ranchi submitted a letter/application dated 18.03.2019/19.03.2019 under Section 80 of the JVAT Act before Additional Commissioner of Commercial Taxes for revision of the original assessment orders dated 04.01.2017 and 10.01.2017 for the Assessment Years 2013-14 and 2014-15 respectively. 16. Said letter/application was considered by Additional Commissioner of Commercial Taxes as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed permission for review to the Adjudicating Authority on the same set of grounds on which the order is sought to be revised in suo motu revision application. 18. On 25.03.2019, Additional Commissioner, Commercial Taxes, despite such specific objections being raised regarding the very maintainability of revision application, only verbally directed the D.C.C.T., West Circle, Ranchi to communicate the order passed in review proceedings to Respondent No. 1 and also to supply copy of the documents and/or the application for revision, which was submitted in the form of letter, to Respondent No. 1 and fixed the next date of hearing on 01.04.2019. 19. On 01.04.2019, Respondent-assessee submitted its detailed reply to suo motu revision application and sought time for detailed arguments in the matter, but on the said date itself, Judgment was reserved by the Additional Commissioner. 20. Thereafter, on 25.04.2019, Additional Commissioner, Commercial Taxes passed order in respect of revision petition filed by D.C.C.T. West Circle, Ranchi and although only one revision application was filed for Assessment Years 2013-14 and 2014-15, Additional Commissioner, in its order, numbered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Petitioner-D.C.C.T., West Circle, Ranchi, initially initiated review proceedings under Section 81 of the JVAT Act against the original assessment orders, but rightly vide order dated 13.03.2019, dropped the said review proceedings as the scope of review jurisdiction was only limited to clerical correction or error appearing in the case records, whereas, the documents on record which were utilized for passing assessment orders, required re-consideration of various issues, and, it is for the said reason that D.C.C.T. preferred revision application before Additional Commissioner of Commercial Taxes, Jharkhand. It has been submitted that J.C.C.T. (Administration), Ranchi Division, Ranchi, being the superior officer of the D.C.C.T. West Circle, vide its letter no. 944 dated 12.12.2018, while considering the refund applications of Respondent No. 1, made certain observations regarding correctness and propriety of the original assessment orders and directed for re-consideration of the original assessment orders, which led to initiation of review proceedings by D.C.C.T., but since the scope of review proceeding by D.C.C.T. was limited, after dropping the review proceedings, revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere with the said order. Merely because two views are possible and Commercial Taxes Tribunal has adopted one view, is not a ground for interfering with the orders passed by Commercial Taxes Tribunal. 31. It has been further contended that Petitioner-D.C.C.T., West Circle, Ranchi has indulged itself in Forum shopping in as much as, earlier, pursuant to direction given by J.C.C.T. (Administration) vide letter no. 944 dated 12.12.2018, D.C.C.T. initiated review proceedings under Section 81 of the JVAT Act, 2005 read with Rule 54(3) of the JVAT Rules, 2006. It has been submitted that in terms of Rule 54 of the JVAT Rules, D.C.C.T., in order to seek review of its order and/or its predecessor in interest, beyond the period of one year from the date of passing of the order, has to seek approval/sanction from Commissioner of Commercial Taxes and, accordingly, D.C.C.T. applied for sanction of review on the same set of grounds on which, subsequently, revision application was filed by it before Commissioner of Commercial Taxes. The Commissioner of Commercial Taxes, vide its order contained in Memo No. 66 dated 07.01.2019, accorded sanction for review of the assessment orders on the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically contended that no records, whatsoever, was available with Additional Commissioner, Commercial Taxes, and, without any records either called for and/or produced by D.C.C.T., West Circle, it has been wrongly recorded in the order that records have been perused. Reference has been invited to the finding of fact recorded by Commercial Taxes Tribunal in Paras 26, 27, 28 and 31 of the impugned Judgment, wherein, Commercial Taxes Tribunal has specifically recorded that Additional Commissioner, Commercial Taxes, Jharkhand committed grave error by mentioning in its order that it has perused the records of review proceedings including assessment orders, which were not available on record before it. 35. It has been further submitted that not only that Additional Commissioner, Commercial Taxes has passed the order dated 25.04.2019 in utter disregard to the statutory provisions contained under Section 80(4) of JVAT Act, but even the said order has been passed in a hasty manner without granting any effective opportunity of hearing to Respondent-assessee. By referring to following dates, it has been submitted that entire revision application was disposed of by Additional Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mines Ltd. Vs. State of Jharkhand, reported in 2023 SCC OnLine Jhar 1188 : (2023) 118 GSTR 87, it has been contended that assessment orders create a valid statutory right in favour of Respondent No. 1, especially when the assessment orders were followed by excess Demand Notices conferring refund upon Respondent No. 1 and initiation of revision proceedings is to be strictly in accordance with the statutory provisions of law, and, it has been rightly held by Commercial Taxes Tribunal that the very initiation of revision proceedings by Writ Petitioner-D.C.C.T., West Circle, Ranchi before Additional Commissioner of Commercial Taxes was not maintainable and, accordingly, no interference was required in the orders passed by Commercial Taxes Tribunal. 38. We have heard learned counsels for the rival parties and have examined in detail the original assessment orders, revision petition filed by Writ Petitioner-D.C.C.T., order passed by Additional Commissioner and orders passed by Commercial Taxes Tribunal, Jharkhand, Ranchi. 39. From the facts of the case, it transpires that original assessment orders pertaining to the period 2013-14 and 2014-15 were passed by Assessing Authority o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commercial Taxes (Administration of the concerned division, on application, may condone the delay for filing the claim of refund. 41. Further, Rule 19(6) prescribes that refund shall be made within 60 days after filing of refund application. However, in the present case, after a lapse of more than 12 months from the date of refund application by the assessee, although favourable recommendations were made by the Writ Petitioner-D.C.C.T. for granting refund statutorily due to the assesse, the prescribed refunding authority i.e. J.C.C.T. (Administration) (Respondent No. 4), without citing any reason, vide its letter no. 944 dated 12.12.2018, directed for review of the assessment orders under Section 81 of the JVAT Act, read with Rule 54(3) of JVAT Rules, by merely recording, inter alia, that certain issues incidental to non-taxable purchases/expenses were not considered at the time of original assessment orders. 42. It would be profitable at this stage to quote provisions of Section 81 of the JVAT Act and Rule 54 of JVAT Rules, which read as under:- 81. Review.-- Subject to such rules as may be made by the State Government under this Act any authority appointed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commercial Taxes for review of the assessment orders for the periods 2013-14 and 2014-15 under Section 81 of JVAT Act. The Commissioner of Commercial Taxes, vide its common order contained in Letter No. 66 dated 07.01.2019 (Annexure R-5) granted permission for initiation of review proceedings and further directed that review proceedings be completed within one month after granting due opportunity of hearing to the assesse. 45. It is pursuant thereto that review proceedings were initiated by Writ Petitioner-D.C.C.T. vide Notice dated 08.01.2019 for both the aforesaid years and, in the said Notice, Respondent-assessee was directed to explain as to why certain deductions towards non-taxable charges/expenses in terms of Section 9(4)(c) of JVAT Act be not added back in the taxable turnover of the assesse. 46. It is an admitted fact that Respondent No. 1 duly appeared before the Assessing Authority in said review proceedings and filed detailed reply submitting explanation in respect of all the issues regarding deduction of non-taxable charges/expenses for arriving at the taxable value of works contract and prayed for dropping of the review proceedings. 47. Review proceedings wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner and/or Additional Commissioner could have initiated suo motu revision proceeding on the same set of grounds on which, earlier, the said authority itself granted sanction for initiation of review proceedings by the adjudicating authority . As already mentioned above, the Commissioner of Commercial Taxes granted sanction vide order dated 07.01.2019 to the adjudicating authority to initiate review proceedings against original assessment orders. The adjudicating authority initiated review proceedings against original assessment orders and after initiating review proceedings, on examination of the detailed documents, etc., itself held that the case is not reviewable as there is no error apparent from the records of the case. Under said circumstances, the question, thus, arises as to whether said authority, who itself dropped the review proceedings on the same set of facts, could have approached the Commissioner of Commercial Taxes for initiation of suo motu revision proceedings on the same set of facts. In our opinion, it is not a proper course of action to be adopted in approaching the Commissioner of Commercial Taxes for initiation of suo motu revision proceeding, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner at the stage of filing of reply before the Additional Commissioner of Commercial Taxes, Jharkhand. 27. It has also been asserted by the learned Counsel for the Petitioner at Para 42 that one of primary contention of the respondent no. 4 was that certain claim for deduction from the taxable turnover of the petitioner was allowed without there being any adequate documents on record in that regard in the assessment order. In view of said contention raised by Respondent no. 4 it was absolutely necessary for the learned Additional Commissioner of Commercial Taxes, Jharkhand to summon Lower Court records to further verify the said facts and also to give opportunity to the petitioner in that regard. However, no opportunity whatsoever was given to the petitioner in that regard nor the lower court records were summoned and merely on surmises and conjectures and on mere asking of the Assessing Authority, original assessment order has been set aside. 28. However, neither any counter affidavit was filed on behalf of the State rebutting the assertion of the Petitioner made in above Para 42 and 43 of the Revision nor any contrary evidence was produced on behalf of the State re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation requesting for copy of revision application along with relied upon documents and prayed for 30 days time for filing its reply. 25.03.2019 Respondent No. 1 further filed interlocutory application raising preliminary objection regarding maintainability of revision application. Despite time being sought for 30 days for filing reply to the revision application, only 6 days time was given and next date was fixed on 01.04.2019. 01.04.2019 On 01.04.2019, Respondent No. 1 submitted its detailed reply and further sought time for detailed arguments in the matter. However, on the said date itself, arguments were concluded and Judgment was reserved. 58. From the above dates itself, it would be evident that Additional Commissioner of Commercial Taxes has acted in undue haste in disposing of the revision applications. It is trite law that if an authority acts in undue haste, malice in law is to be presumed and his action is deemed to be mala fide. 59. In view of the aforesaid facts and circumstances of the case, we are of the firm opinion that orders passed by Additional Commissioner, Commercial Taxes dated 25.04.2019 suffer from various illegalities and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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