TaxTMI 
TaxTMI 
2012 (3) TMI 394
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...., by preferring W.P.(T) No. 4693 of 2005 before this court but that petition was dismissed on November 2, 2007 (B.O.C. India Ltd. v. State of Jharkhand [2009] 21 VST 475 (Jharkh)), holding that M/s. BOC has no locus standi to file writ petition as admittedly tax was payable by TISCO (presently petitioner before us), who is purchaser of oxygen produced by the BOC and using it in its industrial unit for its product. This court was of the view that since liability will be on TISCO, therefore, the TISCO alone could have challenged the action of the Revenue. The order of the court was challenged by both M/s. BOC as well as present petitioner-TISCO by preferring Civil Appeal No. 1538 of 2009 and Civil Appeal No. 1540 of 2009 respectively. Both th....
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....ISCO as well as for producing evidence which was duly produced by the writ petitioner. After This copy was printed from considering all the evidences on record the assessing officer held that the oxygen is a "refining" or "reducing agent" only and cannot be held raw material. The assessing officer's order dated October 1, 2011 is sought to be challenged in this writ petition. The learned counsel for the State has raised objection about the maintainability of the writ petition on the ground of the availability of alternative remedy of appeal under section 45 of the Bihar Finance Act, 1981 as adopted by the State of Jharkhand. The learned counsel for the petitioner submitted that the petitioner cannot prefer appeal in view of the fact t....
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....of section 45 it is provided that the dealer may prefer appeal against any order of assessment or penalty, passed by the prescribed authority against him and it is also provided that person objecting to order of penalty passed against him or an order under section 27 of the Act may appeal to the Joint Commissioner, Deputy Commissioner especially authorized for it. Therefore, it is true that the dealer can prefer appeal against the order of assessment and appeal also can be preferred by person other than dealer in the cases where order of penalty has been passed or order has been passed under section 27 of the Act against such person who may not be dealer. So far as the assessment order is concerned, it can be challenged by the dealer. But ....
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....erson was not party in assessment proceedings and not the dealer registered under the Act then he can prefer writ petition. However, in peculiar facts and circumstances available in this case where, by the order of the honourable Supreme Court the petitioner was permitted to appear before the assessing authority, who otherwise could not have been a party in the original assessment proceeding and become party by virtue of the honourable Supreme Court's order as a party and therefore, in these peculiar facts and circumstances when he was a party in original proceeding then in that situation the petitioner can prefer appeal under section 45(1) of the Act, 1981. At first, we may observe that the petitioner admittedly otherwise could not ha....
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....he submission of the learned counsel for the petitioner that because of the view expressed by us every consumer affected by the taxation who may not be dealer will be challenging the order of the assessing authority in appeal. The ratio applies to the facts of the case. In view of the above reasons we are to examine whether it is a fit case for entertaining the writ petition even when the petitioner can challenge the impugned order. We are of the considered opinion that for determination of question of fact requires technical expertise of the Department in view of the observation of the honourable apex court as this issue is not of law only and therefore, in the facts of the case where it is required to be decided after considering the evi....