TaxTMI 
TaxTMI 
2023 (10) TMI 107
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....the following reliefs:- W.P.(T) No. 1764 of 2023 "(i) For issuance of an appropriate writ/order/direction, for quashing/setting aside the Review Order allegedly dated 27.09.2012 and communicated to Petitioner on 29.06.2020, passed in alleged exercise of power under Section 47 of the Bihar Finance Act, 1981 by Respondent No. 4 (Annexure-8), wherein pursuant to Audit Objection, additional tax liability of Rs. 8,69,37,888/- has been determined against the Petitioner-company without following due procedure of law, especially in view of the fact that the said review order has been served to Petitioner after a lapse of a period of eight years. (ii) For issuance of further appropriate writ/order/direction, for quashing/setting aside the notice issued vide Memo No. 830 dated 04.01.2011 issued by Respondent No. 4 (Annexure-2) wherein Respondent No. 4 has initiated review proceeding against Petitioner without recording any satisfaction which is contrary to statutory provisions of Section 47 of Bihar Finance Act, 1981. (iii) For issuance of further appropriate writ/order/direction, for quashing/setting aside the Sanction Letter contained in No. 1485 dated 27th De....
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....io, especially in view of the fact that review order allegedly dated 27.09.2012 has been communicated to Petitioner on 29.06.2020 i.e., after a prolonged delay of eight years without assigning explanation/reasons to it." 4. Writ Petition being W.P.(T) No. 1764 of 2023 pertains to financial year 2005-06 and the Writ Petition being W.P.(T) No. 1765 of 2023 pertains to financial year 2004-05. For the sake of brevity, facts pertaining to financial year 2004-05 are enumerated hereinafter. 5. The Petitioner-Company is a manufacturer of Iron and Steel and is having its Industrial Unit at Jamshedpur and is also having its Collieries in various Districts of the State of Jharkhand including the District of Dhanbad, where Petitioner has its Colliery popularly known as 'Jamadova Colliery'. The dispute in the instant writ applications pertains to Jamadova Colliery, which is engaged in the business of mining i.e. extraction of coal primarily for captive consumption in its Industrial Unit situated at Jamshedpur. 6. For the period in dispute, original assessment proceeding of the petitioner was completed on 06.12.2008 and gross turnover reflected by petitioner in its return was duly accep....
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....y which Joint Commissioner of Commercial Taxes (Administration), Dhanbad Division, Dhanbad accorded sanction for initiating review proceedings. Despite repeated requests made by the petitioner, the petitioner was not supplied any reason for initiation of review proceedings including copy of the Sanction Order. However, subsequently, the petitioner obtained certified copy of the Sanction Order contained in Letter No. 1485 dated 27th December 2010 (Annexure-5) which further reveals that prior to granting sanction for review, no reason whatsoever was assigned by the sanctioning authority for according sanction. Further, in the Sanction Order, reference was made to Letter No. 820 dated 23.12.2010 issued by Respondent No. 4 to Respondent No. 2 requesting for grant of sanction. However, copy of the said letter was not furnished to the petitioner. 9. According to the petitioner, it repeatedly, for the period from 19.07.2012 to 28.08.2012, pursuant to Notice issued for initiation of review proceeding, demanded the grounds on which review proceedings were initiated as well as copy of Letter No. 820 dated 23.12.2010 by which reviewing authority sought sanction from Respondent No. 2. Howev....
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....i) Kumaon Mandal Vikas Nigam Ltd. v. Girija Shankar Pant & Ors., reported in (2001) 1 SCC 182 (Paras 5, 19, 20); (ii) Kothari Filaments & Anr. V. Commissioner of Customs (Port) Kolkara, reported in (2009) 2 SCC 192 (Para 15); (iii) Sona Builders v. Union of India, reported in (2001) 10 SCC 280 (Paras 5, 6, 7); (iv) Ayaaubkhan Noorkhan Pathan v. State of Maharashtra & Ors., reported in (2013) 4 SCC 465 (Paras 28, 30); (v) Oryx Fisheries Pvt. Ltd. v. Union of India, reported in (2010) 13 SCC 427 (Paras 24, 27, 40, 41). (c) It has been submitted that once, on the same cause of action pursuant to audit objection, re-assessment order has been passed by Respondent No. 4, no fresh proceeding can be initiated in respect of the proceeding which has been dropped earlier. Reliance in this regard was placed upon decision of Hon'ble Apex Court in the following case:- (i) CCE, Meerut v. Prince Gutka Ltd., reported in (2015) 15 SCC 775 (Para 3). (d) It has been further submitted that once the Assessing Authority itself rejected the audit objection, then the same said audit objection cannot be used for initiating review proceeding and ....
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.... that the petitioner approached this Court directly challenging the order of review, which is appealable under the provisions of the Bihar Finance Act, 1981. Hence, in view of availability of effective alternative remedy of appeal, writ petitions should be dismissed in limine. 13. It has been further submitted that review order was passed on 27.09.2012, but present writ applications have been filed in the year 2023 i.e., after delay of more than 11 years and, thus, on the ground of delay and latches itself, writ petitions are liable to be dismissed. 14. Lastly, it has been submitted that although Respondent No. 4 earlier passed order dated 13.08.2010 pursuant to audit objection not agreeing with the audit objection and dropping the proceeding, but the said authority was well within its jurisdiction to initiate review proceeding under Section 47 of the Bihar Finance Act for reviewing its order, being an order, which was erroneous and contrary to law. Hence, no illegality can be attributed for passing the review order by Respondent No. 4. 15. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the aver....
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.... Value of intra-state stock transfer Rs. 1365145460.00 + Rs. 2173447211.00 = Rs. 3538502671.00 Tax @ 4% on Rs. 3538592671, Rs. 141543706.84. On this being point out DCCT Jharia Circle, Dhanbad stated that "The case will be reviewed under intimation to audit." 16. A perusal of the audit objection would transpire that primary objection raised by the Auditor was that Tata Steel Ltd. stock transferred its goods from Jamadova Colliery to its Jamshedpur Unit, but did not file statutory Declaration Form IX-D as mandated under Section 21 (1A) of the Bihar Finance Act. For the sake of brevity, Section 21(1A) of the Bihar Finance Act is quoted herein-below:- "21. Taxable turnover.-(1) For the purpose of this part of the taxable turnover of the dealer shall be that part of his gross turnover which remains after deducting therefrom- Xxx xxxx xxx (1A) Where any dealer claims that he is not liable to pay tax on any part of his gross turnover in respect of any goods by reason of transfer of such goods by him to any other dealer or to his agent or principal, as the case may be, for sale, the burden of proving this claim shall be on the dealer and for ....
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....ned in Memo No. 830 dated 04.01.2011 and from bare perusal of the said review notice, it would be evident that said notice was completely vague and no reason, whatsoever, was assigned for initiation of the review proceeding. Even the order of sanction granted by Joint Commissioner of Commercial Taxes (Administration), Dhanbad Division, Dhanbad, contained in Letter No. 1485 dated 27th December, 2010 does not record any application of mind and/or any discussion before granting sanction for review. In fact, a perusal of the said letter would reveal that sanction was granted on mere asking of the Assessing Authority without recording any satisfaction and/or without due application of mind. 21. At this stage, we feel it appropriate to quote Section 47 of the Bihar Finance Act, 1981 which contains provision for review. Section 47 of Bihar Finance Act reads as under:- "47. Reviews. - Subject to such rules as may be made by the State Government under this part any authority appointed under Section 9 or the Tribunal may review any order passed by it, if such review is, in the opinion of the said authority or Tribunal, as the case may be, necessary on account of a mistake which i....
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....dicate the mode and manner of communication of the review order. 23. It is trite law that an order passed by an authority does not take effect unless it is communicated to the affected party and the said issue stand settled by following decisions of the Hon'ble Supreme Court of India, namely:- (i) Bachhittar Singh v. State of Punjab, reported in (1962) Supp 3 SCR 713 (Paras 4, 9, 10); (ii) Bipromasz Bipron Trading SA v. Bharat Electronics Limited (BEL), reported in (2012) 6 SCC 384 (Paras 31 to 35). 24. We are not satisfied with the contention made by Mr. Yadav, learned counsel for the State that the petitioner has approached this Court after an inordinate delay of eleven years from the date of passing of the review order, inasmuch as, the review order was never communicated to the petitioner and, for the first time, it was communicated in the year 2020 and even, thereafter, this petitioner repeatedly approached the Respondent-authorities for supply of records pertaining to review proceedings which was supplied belatedly to the petitioner. Hence, we are of the opinion that there is no delay and latches on the part of the petitioner in approaching this Court ....