AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (11) TMI 1157
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....d amount to the tune of Rs. 6,79,48,484/- the petitioner has been directed to make payment of a total sum of Rs. 20,11,80,806/- for the period 2015-16 as entry tax. The petitioner further prayed to restrain the respondents from taking steps for realization of the aforesaid amount of tax and interest mentioned in the impugned order of assessment and demand notice. It is the case of the petitioner that the petitioner is a company engaged in the business of sale of cement having sale units across the country, one of which is located in S.P. Verma Road in the town of Patna. For the period 2010-11, the petitioner paid Rs. 14,18,09,180/- on 27.03.2014 and Rs. 1,88,56,180 on 27.02.2014 as entry tax. By order contained in memo no. 391 dated 31.03.2015 issued under the signature of the Joint Commissioner Commercial Taxes, Patna, order of refund of tax by adjustment under the Bihar Value Added Tax Ordinance, 2005 was issued with respect to the petitioner. It was ordered that for the year 2010-11 a refund of Rs. 15,04,59,365/- was due under Rule 43/Rule 44 of the Bihar Value Added Tax Rules, 2005 and that the said refund was to be adjusted towards entry tax dues for the period 2014-15. It is....
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.... 2015-16 payable by the petitioner was Rs. 20,11,80,806/-. Subsequent to the order of assessment dated 12.01.2019 (Annexure-6 to the writ application) the respondent authorities have also issued demand notice dated 12.01.2019 (Annexure-4 to the writ application) and reminder dated 28.01.2019 (Annexure-7 to the writ application). It is for the quashing of the order of assessment as contained in Annexure-6, the demand notice as contained in Annexure-4 and the reminder as contained in Annexure - 7 that the petitioners have preferred the instant application. A counter affidavit and a supplementary counter affidavit has been filed on behalf of the Assistant Commissioner, State Taxes, Special Circle, Patna i.e. the respondent no. 2 herein. It has been submitted on behalf of the respondent no. 2 that the petitioner who was involved in the import of scheduled goods under the BTEG Act, 1993 have admitted the entry tax liability upon the import of such goods. They being engaged in business of such goods within the State of Bihar, have also accepted the VAT liability under the BVAT Act, 2005. In the annual return filed in Form ET - 05 by the petitioner for the period from 01.04.2015 to 31.03....
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....or the petitioner and Mr. Vikash Kumar, learned Standing Counsel no. 11 for the respondents. It has been contended by learned counsel for the petitioner that from order dated 31.03.2015 relating to the period 2010-11 issued under the BVAT Act, 2005 it would transpire that a sum of Rs. 15,04,59,365/- was refundable and the said refund was to be adjusted towards 2014-15 entry tax. It has further been contended that for the return of 2015-16 the last date would be December, 2016 and the due date would be 31.12.2017. The authority concerned had no jurisdiction of scrutiny on 12.01.2019 as has been done, as contained in Annexure-6 to the application and the same is wrong, illegal and without jurisdiction. As a consequence, the demand notice dated 28.01.2019 as contained in Annexure-7 to the application is also bad . Further contention on behalf of the petitioner is that section 39 deals with payment and recovery of tax. Section 39(2)(ii) provides for payment of tax by the dealer according to the return filed by the dealer where full payment of such amount has not been made. It has been contended that from perusal of Form ET-05 for the relevant period 2016-17 the amount of tax paid as p....
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.... and the refund reflected therein is to be adjusted towards 2014-15 (ET). It has been submitted that the matter in issue related to three financial years i.e. 2010-11, 2014-15 and 2015-16. For the period 2010-11 a sum of Rs. 15.04 crores (approx) has been found to be refundable to the petitioner. It has been submitted that an application for refund under section 68 of the Bihar VAT Act, 2005 has to be made in Form A-(VIII) and in the said form a categorical statement has to be made as to the manner in which the refund is preferred and that if the refund is preferred by way of adjustment, the period against which the adjustment is prayed for, has to be mentioned. Learned counsel referring to Annexure-2 to the supplementary counter affidavit on behalf of the respondent no. 2 stated that from perusal of a copy of Form A (VIII) submitted by the petitioner it would transpire that with respect to the refund for the period 2010-11 the petitioner had made an application praying for refund by adjustment as against the entry tax for the period 2014-15. This application is dated 24.03.2015. It has been submitted that against the application dated 24.03.2015 in Form A (VIII), the refundable a....
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....hereafter instead of proceeding to pass assessment order for the period 2014-15 (ET), passed the assessment order for the period 2015-16 (ET) first. While the assessment order for the period 2014-15 (ET) has been passed on 22.06.2019, an order under section 39 (2) of the BVAT Act for the period 2015-16 has been passed on 12.01.2019 (Annexure-6) itself taking into consideration the amount of entry tax accepted by the petitioner in their returns and the amount of entry tax actually paid by the petitioner for the relevant period. As per order under section 39(2) of the BVAT Act, 2005 for the period 2015-16, while the petitioner has been found liable to pay further a sum of Rs. 13.32 crores (approx), in the assessment order dated 22.06.2019 for the period 2014-15. It has been found that a sum of Rs. 15.33 crores (approx) is refundable to the petitioner and it has further ordered that the same would be refunded by way of adjustment against the tax for the next year i.e. 2015-16. Thus, if the respondent authorities has passed the assessment order for the period 2014-15 prior to passing of order under section 39(2) for the period 2015-16, there would not have been any tax liability of th....