TaxTMI 
TaxTMI 
2014 (9) TMI 339
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....tical issues are involved, all the three writ petitions were taken up together and shall stand disposed of by this common judgment. For proper appreciation of the contentious points and for convenience, the facts of W.P (T) No.1967/2013 are referred. 3. The petitioner was served with demand notices under Section 13(4) of the Bihar Finance Act, 1981 for the period from 2001-02 to 2005-06. The case of the petitioner is that after receipt of the demand notices, the petitioner applied for certified copies of the assessment orders and of the entire ordersheets to enable the petitioner to avail its statutory right of filing appeal/revision in accordance with the provisions of the Bihar Finance Act, but the respondents till date have not supplied certified copies of the assessment orders despite filing of the appropriate application for obtaining certified copies of the assessment orders and sending reminders. The petitioner and its Directors received notices dated 14.3.2011 under Section 7 of the Bihar and Orissa Public Demands Recovery Act, 1914 (for short PDR Act) in connection with Certificate Case No.3/2010-11 initiated on the basis of the requisition for a certificate by the 2nd re....
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....d under Rule 49 of the Bihar Sales Tax Rules and therefore, the petitioner cannot complain of non-furnishing of certified copy of the assessment orders. Taking us through the various provisions of the PDR Act, learned Additional Advocate General submitted that the said Act is a self-contained one containing mechanism to deal with the redressal of the grievance and the petitioner, having appeared in the certificate proceedings, cannot bye-pass the statutory provisions of the PDR Act by invoking writ jurisdiction. 6. Upon consideration of the submissions, the following points arise for determination in these writ petitions:- (i) Whether the petitioner is entitled to invoke the writ jurisdiction on the ground that the certified copies of the assessment orders and complete ordersheets have not been furnished to the petitioner; and (ii) Without availing the statutory remedy available under Bihar and Orissa Public Demand Recovery Act, 1914, whether the petitioner can challenge the demand notices and Certificate Proceedings by invoking the writ jurisdiction. 7. Without availing the statutory remedy available under the Bihar Sales Tax Act and the PDR Act, the petitioner has invoked the....
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...., the petitioner had not preferred any appeal as stipulated under Section 45 of the Bihar Finance Act. 9. Section 45 of the Bihar Finance Act provides right of appeal to any dealer objecting to an order of assessment or penalty or both passed by the prescribed authority against him or a person objecting to an order penalty passed against him or an order passed under Section 27 may appeal to the Joint Commissioner or the Deputy Commissioner specially authorized in this behalf. As per Rule 29 of the Bihar Sales Tax Rules, an appeal under Section 45 shall be in Form XVIII in case of an appeal against an order of assessment or an order imposing penalty and the memorandum of appeal shall be accompanied by:- (i) a certified copy of the order appealed against and the notice of demand, if any, served upon the appellant; and (ii) in case of an appeal against assessment, a receipt showing deposit into the Government Treasury of at least 20 percentum of the tax assessed or such amount of tax as the appellant may admit to be due from him, whichever is greater. 10. The grievance of the petitioner is that he was not served with the certified copy of the various assessment orders and therefor....
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....24 has been annexed in the counter-affidavit, as per which the person concerned, for obtaining certified copy, has to fill up various columns thereon, interalia, furnishing details of the case of proceeding in which such paper is to be found or was filed; ordinary searching fee deposited in court fee stamp; extra searching fee deposited in court fee in stamp; name of officer or department where the paper in question is to be found etc. and other details. Annexure 3 series are stated to be the challans for filing copy application for obtaining certified copies of the assessment orders. No material has been produced to show that the application for obtaining certified copies of the assessment orders were filed in the prescribed form/Board Miscellaneous Form No.124. Annexure 3 series - challans - are filed for showing that applications were filed for obtaining certified copies of the assessment orders for the period 2001-02 to 2005-06. But the petitioner has sent reminders on 7.12.2009, 9.8.2010 and 7.12.2010 stating that the petitioner requires certified copies of the assessment order for the periods 1994-95 to 2005-06. When the petitioner has not filed appropriate application in the....
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....rder is said to have been passed just on the verge of expiry of four years on 18.3.2006 and the demand notice is said to have been received by the petitioner on 30.8.2007 beyond the stipulated period of four years and thus, an inference has to be drawn that the date of assessment order was antedated. It was also submitted that the date of order of assessment regarding financial year 2002-03 was dated 20th June, 2006 and that the same was said to have been received by the petitioner on 30.8.2007, which would also lead to an inference that the assessment orders of the proceedings were ante-dated. In support of his contention, learned Senior Counsel placed reliance on [1994] 93 STC 406(SC) (State of Andhra Pradesh v. Khetmal Parekh) and also on the decision of the Division Bench of this Court in W.P(T)1006/2010 (M/s.MECON Limited v. The State of Jharkhand& Ors.). In the said case State of Andhra Pradesh v. Khetmal Parekh, an assessment order passed in September, 1969 was sought to be revised by the Deputy Commissioner under Section 20(2) of the Andhra Pradesh General Sales Tax Act, 1957 and he passed an order prejudicial to the assessee and the order was said to have been made in Janu....
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.... date of hearing on 18.4.2011 before the Certificate Officer, the counsel for the petitioner stated that the petitioner is not satisfied with the assessment done by the Department. In the subsequent proceedings before the Certificate Officer, learned counsel for the petitioner appeared and took adjournment for filing objection. In Certificate Case No.3/2010, the petitioner also filed detailed objection under Section 9 of the PDR Act raising all the contentious points and also stating about the Company Petition filed in the Calcutta High Court and prayed for dropping of the certificate proceeding. Challenging the certificate proceeding in Certificate Case No.3/2010, earlier the petitioner and the petitioners in the other writ petitions also filed W.P(C) No.6254/2011, W.P(C) No.6314/2011 and W.P(C) No.6270/2011 and the same were lingering on file for about two years. On 19.3.2013 the petitioner sought permission to withdraw these writ petitions on the ground that sales tax demand notices were not under challenge in the writ petitions, rather certificate proceeding itself has been challenged. On such representation, the writ petitions were dismissed as withdrawn giving liberty to the ....
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....33] (Titaghur Paper Mills Co. Ltd. v. State of Orissa), Hon'ble Supreme Court considered the question whether a petition under Article 226 of the Constitution should be entertained in a matter involving challenge to the order of assessment passed by the competent authority under the Central Sales Tax Act, 1956 and negatived the same by the following observations:- "11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now we....
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.... Petition/winding up proceeding is pending against the petitioner in Calcutta High Court, vide Company Petition No.314/2007 and the company has been ordered to be wound up in accordance with the provisions of the Companies Act, 1956, vide order dated 2.2.2013 and the Court directed the Official Liquidator to take possession and charge of the assets of the petitioner-company, the Department cannot initiate any proceedings for recovery of the tax due and therefore, the petitioner seeks for a direction that the remedy of the revenue lies before the Company Court where the winding up petition is pending. 24. The order of winding up of the petitioner company is subsequent to the initiation of the certificate proceedings. In fact, the petitioner, in objection under Section 9 of the PDR Act, has also indicated about the pendency of the winding up petition. It is for the petitioner to bring to the notice of the Certificate Officer regarding the winding up order passed on 2.2.2013 and merely on the ground of pendency of the winding up petition, the certificate proceedings cannot be quashed. 25. It must be remembered that the certificate proceeding is initiated by the State for recovery of....