TaxTMI 
TaxTMI 
2026 (3) TMI 8
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...., Ms. Nidhi Lal, Advocate, Mr. Shruti Shekhar, Advocate, Mr. Biren Poddar, Advocate, Mr. Piyush Poddar, Advocate, Mr. Deepak Sinha, Advocate, Mr. Manav Poddar, Advocate. For the Respondents: Mr. Ravi Prakash Mishra, A.C to AAG-II, Mr. Rahul Saboo, G.P.-II, Mr. Kunal Chandra Suman, AC to GP-II. JUDGMENT 1. Heard learned counsel for the parties. 2. Since common issue is involved in all these writ applications; as such with consent of the parties all were heard together and disposed of by this common judgement. 3. For brevity, prayer made in the respective writ applications is being extracted hereinbelow: - WP(T) No. 4397 of 2014 1. That in the instant writ application the petitioner above named prays for issuance of appropriate writ(s), order(s), direction(s) from this Hon'ble Court for the following reliefs:- A). For a declaration that the provisions of sub-section (3) of Section 42 of the Jharkhand Value Added Tax Act, 2005 regarding reassessment, inserted in the said Act by Jharkhand Ordinance no. 2 of 2011 i.e. Jharkhand Value Added Tax (Amendment) Ordinance, 2011 (Annexure-13) by section 16 thereof published in the Official Gazette on 1.....
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....ction (3) of section 42 of the Jharkhand Value Added Tax Act, 2005; for the financial year 2006-07; on the basis of Audit objection contained in Annexure-4 by the Assistant Commissioner of Commercial Taxes, Singhbhum Circle, Jamshedpur vide order sheet dated 13.5.2014 because the provisions of sub-section (3) of section 42 of the JVAT Act is not applicable. For the financial year 2006-07 and the only provision for making reassessment for the said year is section 40(1) of the Jharkhand Value Added Tax Act, 2005 and even if it is deemed to have been initiated under sub-section (1) of section 40 of the said Act, then also the same is not sustainable because he failed to record his satisfaction on the basis of some information to the effect that he has reason to believe that whole part any or of the Turnover of the dealer/Petitioner in respect of any period has either been: i) escaped assessment; or ii) been under assessed; or iii) been assessed at a rate lower than the rate on which it is assessable; iv) been wrongly allowed any deduction therefrom; or; v) been wrongly allowed any credit therein. E) For quashing of the notice being....
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....r sheet dated 5.11.2011 for the period 2006-07 as contained in Annexure-4 because he failed to record his satisfaction on the basis of some information to the effect that he has reason to believe that whole or any part of the Turnover of the dealer/Petitioner in respect of any period has either been: i) escaped assessment; or ii) been under assessed; or iii) been assessed at a rate lower than the rate on which it is assessable; iv) been wrongly allowed any deduction therefrom; or; v) been wrongly allowed any credit therein. b) For quashing of the 3 composite/combined notices being nos. 3220, 3221 and 3224 issued in Form JVAT 302, all dated 11.11.2011, for the year 2006-07, contained in Annexures-5, 5/1 and 5/2 issued by the Deputy Commissioner of Commercial Taxes, Ranchi South Circle, Ranchi u/s 40(1) of the Jharkhand Value Added Tax Act, 2005 for making reassessment for the year 2006-07. c) For quashing of the reassessment-cum-penalty order dated 6.6.2012 (Annxure-8) passed u/s 40(1) of the Jharkhand Value Added Tax Act, 2005 for the year 2006-07 by the Assistant Commissioner of Commercial Taxes, Ranchi South Circle, R....
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....Hon'ble Court for the following reliefs:- A). For a declaration that the provisions of sub-section (3) of Section 42 of the Jharkhand Value Added Tax Act, 2005 regarding reassessment, inserted in the said Act by Jharkhand Ordinance no. 2 of 2011 i.e. Jharkhand Value Added Tax (Amendment) Ordinance, 2011 (Annexure-10) by section 16 thereof published in the Official Gazette on 1.10.2011 and also by Jharkhand Act 22, 2011 i.e. Jharkhand Value Added Tax (Amendment) Act, 2011 (Annexure-10/1) by section 16 thereof is not applicable for the financial year 2007-08 and the only provision for making reassessment for the said year is section 40(1) of the Jharkhand Value Added Tax Act, 2005 and in view of the then sub-section (2) of section 40, now renumbered as sub-section (4) of section 40 of the said Act, no order of reassessment can be made under said sub-section (1) of section 40 after the expiry of 5 years from the end of the year as defined u/s 2 (lxiv) to mean the financial year. B). For a declaration that the provisions of sub-section (3) of Section 42 of the Jharkhand Value Added Tax Act, 2005 inserted in the said Act by Jharkhand Ordinance no. 2 of 2011 i.e. Jh....
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....) of section 40 of the said Act, then also the same is not sustainable because he failed to record his satisfaction on the basis of some information to the effect that he has reason to believe that whole оr any part of the Turnover of the dealer/Petitioner in respect of any period has either been: i) escaped assessment; or ii) been under assessed; or iii) been assessed at a rate lower than the rate on which it is assessable; iv) been wrongly allowed any deduction therefrom; or v) been wrongly allowed any credit therein. E) For quashing of the reassessment order dated 2.6.2014 (Annxure-9) passed in the aforesaid impugned proceeding initiated u/s 70(1) of the Jharkhand Value Added Tax Act, 2005 for the financial year 2007-08 by the Commercial Taxes Officer, Singhbhum Circle, Jamshedpur. F) For quashing the demand notice no.4048 dated 28.7.2014 for the year 2007-08 in Form JVAT 300 (Annexure-8), issued by the Commercial Taxes Officer, Singhbhum Circle, Jamshedpur arising out of the aforesaid impugned reassessment order dated 2.6.2014 (Annexure-9). G) For a declaration that in any view of the matter, the afor....
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....08, was passed on 22.9.2014 and therefore it is hopelessly barred by limitation as it could have been passed latest by 31.3.2013 only. b) For a declaration that the provisions of said sub-section (3) of Section 42 of the Jharkhand Value Added Tax Act, 2005 inserted in the said Act as aforesaid is arbitrary, discriminatory, oppressive, confiscatory, unreasonable and invalid being violative of Articles 14, 19(1)(g) and 300A of the Constitution of India and as such the same is unconstitutional ultra vires and therefore not sustainable. c) For a further declaration that the Notification no. S.O.1 dated 7.5.2011 (Annexure-10) issued under the signature of the Secretary-cum-Commissioner, Commercial Taxes Department Jharkhand, Ranchi in the purported exercise of powers conferred by clause (iii) of Section 1 of said Jharkhand Ordinance no. 2 of 2011 giving retrospective effect from 1.4.2006 to said sub-section (3) of Section 42 inserted by the said Ordinance is ultra vires to the said Ordinance including section 1(iii) thereof in so far as it gives such retrospective effect, because power of giving retrospective effect to the provisions of the said Ordinance has not been ....
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....r(s), direction(s) from this Hon'ble Court for the following reliefs:- a) For a declaration that the provisions of sub-section (3) of Section 42 of the Jharkhand Value Added Tax Act, 2005 regarding reassessment, inserted in the said Act by Jharkhand Ordinance no. 2 of 2011 i.e. Jharkhand Value Added Tax (Amendment) Ordinance, 2011 (Annexure-10) by section 16 thereof published in the Official Gazette on 1.10.2011 and also by Jharkhand Act 22, 2011 i.e. Jharkhand Value Added Tax (Amendment) Act, 2011 (Annexure-10/1) by section 16 thereof is not applicable for the financial year 2008-09 and the only provision for making reassessment for the said year is section 40(1) of the Jharkhand Value Added Tax Act, 2005 and in view of the then sub-section (2) of section 40, now renumbered as sub-section (4) of section 40 of the said Act, no order of reassessment can be made under said sub-section (1) of section 40 after the expiry of 5 years from the end of the year as defined u/s 2 (lxiv) to mean the financial year. b) For a declaration that the provisions of sub-section (3) of Section 42 of the Jharkhand Value Added Tax Act, 2005 inserted in the said Act by Jharkhand Ordi....
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....eason to believe that whole any part ог of the Turnover of the dealer/Petitioner in respect of any period has either been: i) escaped assessment; or ii) been under assessed; or iii) been assessed at a rate lower than the rate on which it is assessable; iv) been wrongly allowed any deduction therefrom; or; v) been wrongly allowed any credit therein. e) For quashing of the reassessment order dated 12.9.2014 (Annxure-8) passed under sections 40(1)(d) and 42(3) of the Jharkhand Value Added Tax Act, 2005 for the financial year 2008-09 by the Commercial Taxes Officer, Singhbhum Circle, Jamshedpur. f) For quashing the demand notice no.5922 dated 17.10.2014 for the year 2008-09 in Form JVAT 300 (Annexure-7), issued by the Commercial Taxes Officer, Singhbhum Circle, Jamshedpur arising out of the aforesaid impugned reassessment order dated 12.9.2014 (Annexure-8). g) For a declaration that in any view of the matter, the aforesaid impugned reassessment order (Annexure-8) by which tax has been imposed on the amount of subsidy received by the petitioner from the Government of India on sale of fertilizers is not s....
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....ction 42 inserted by the said Ordinance is Ultra vires to the said Ordinance including section 1(iii) thereof in so far as it gives such retrospective effect because power of giving retrospective effect to the provisions of the said Ordinance has not been conferred by the legislature upon the delegate i.e. state Government under said section 1(iii) of the said Ordinance and in absence of the same, the delegate i.e. the State Government cannot give retrospective effect to any of the provisions of the said Ordinance including 16 thereof by which said sub-section (3) of Section 42 of the Act has been inserted. C. Nature of For issuance of an appropriate writ or a writ in the declaration that comptroller and auditor general of India who is a constitutional authority under chapter V of the constitution of India has no jurisdiction or authority under the constitution or under any law framed by the parliament to pronounce on law or have judicial supervision over the quasi judicial acts of the authorities under the Jharkhand Value Added Tax Act, 2005 and further declare that the audit party of comptroller and auditor general perform essential administrative or executive functions ....
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.... Department Jharkhand, Ranchi in the purported exercise of powers conferred by clause (iii) of Section 1 of said Jharkhand Ordinance no. 2 of 2011 giving retrospective effect from 01.04.2006 to said sub-section (3) of Section 42 inserted by the said Ordinance is Ultra vires to the said Ordinance including section 1(iii) thereof in so far as it gives such retrospective effect because power of giving retrospective effect to the provisions of the said Ordinance has not been conferred by the legislature upon the delegate i.e. state Government under said section 1(iii) of the said Ordinance and in absence of the same, the delegate i.e. the State Government cannot give retrospective effect to any of the provisions of the said Ordinance including 16 thereof by which said sub-section (3) of Section 42 of the Act has been inserted. C. For issuance of an appropriate writ or a writ in the nature of declaration that comptroller and auditor general of India who is a constitutional authority under chapter V of the constitution of India has no jurisdiction or authority under the constitution or under any law framed by the parliament to pronounce on law or have judicial supervision over t....
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.... the Jharkhand Value Added Tax Act, 2005 (hereinafter referred to as 'JVAT Act') pursuant to an audit objection bearing No. IR No. 110/16-17 relating to Para-1 thereof, especially because the said initiation of proceeding for re-assessment is wholly without jurisdiction and void ab-initio. (iii) For issuance of a further appropriate writ/order/direction, including Writ of Certiorari, for quashing/setting aside the Notice bearing No. 41 dated 03.04.2018 (Annexure-10) wherein proceeding for re-assessment initiated vide Notice bearing No. 588 dated 10.04.2017 (Annexure-3) under Section 40(1)(b) of the JVAT Act has been converted into a proceeding under Section 42(3) of the JVAT Act, as being wholly without jurisdiction and void ab initio. (iv) For issuance of a further appropriate writ/order/direction including Writ of Certiorari, quashing/setting aside the Notice bearing No. 7566 dated 27.06.2018 (Annexure-15), wherein proceeding for re-assessment has been again initiated under Section 42(3) of the JVAT Act pursuant to audit objection bearing IR No. 110/2016-17 relating to Para-1 thereof, especially because initiation of the said re-assessment proceeding under Secti....
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....n the nature of declaration that comptroller and auditor general of India who is a constitutional authority under chapter V of the constitution of India has no jurisdiction or authority under the constitution or under any law framed by the parliament to pronounce on law or have judicial supervision over the quasi judicial acts of the authorities under the Jharkhand Value Added Tax Act, 2005 and further declare that the audit party of Comptroller and auditor general perform essential administrative or executive functions and accordingly conferment of power under section 42(3) of Jharkhand Value Added Tax Act, 2005 upon the comptroller and auditor General to pronounce on law and also exercise judicial supervision over the quasi judicial acts of the authorities under the Jharkhand value Added Tax Act, 2005 is wholly without jurisdiction and hence void ab initio. d. For quashing and setting aside the Revisional order dated 16.12.2021, passed in Revision Application no. HZ 18 of 2021 (Annexure-6), for the period 2008-09, by the Commercial Taxes Tribunal, Jharkhand, Ranchi. e. For quashing and setting aside the order dated 02.12.2019 as contained in memo no. 124, Ranchi....
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....rit petitions, be allowed in view of the aforesaid judgment. 5. Learned counsel for the Respondents could not dispute the fact and submits that the issue involved in these writ applications is covered by the judgment passed by this court in the above referred case and the same has attained finality. 6. To decide the respective writ applications, it would be profitable to extracts certain facts of individual writ applications. (i) W.P.(T) No. 4397 of 2014; Tata Chemicals Limited Period (2006-07) Relevant Annexures Barred by Limitation (31.03.2012) Annexures Particulars Page No. Annexure-1 Registration Certificate (Statement at Para 16 of W.P.) 90 Annexure-2 Original Assessment Order dated 25.02.2009 for the Period 2006-07 (Statement at Para 19 of W.P.) 93 Annexure-3 Original Demand Notice dated 27.02.2009 which was paid (Statement at Para 20 of W.P.) 95 Annexure-4 Notice for hearing dated 08.02.2013 for 2006-07 with audit objection wherein the A.O. has not recorded his own satisfaction (Statement at Para 21 of W.P.) 97 Annexure-5 Impugned Entire Order Sheet for 2006-07 wherein by order sheet dated 13.05....
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.... has not recorded his own satisfaction 109 Annexure-8 Impugned Reassessment Order dated 12.09.2014 passed u/s 40(1) and 42(3) of the Act. This order was passed simply following the audit objection without satisfaction of A.O 126 Annexure-7 Impugned Pursuant to the above re-assessment order, a Demand Notice dated 17.10.2014 was issued 125 (iv) Balashri Metals in W.P.(T) No. 6226 of 2014 Period (2007-08) Relevant Annexures Barred by Limitation (31.03.2013) Annexures Particulars Page No. Annexure-1 Registration Certificate (Statement at Para 06 of W.P.) 101 Annexure-3 Original Assessment Order dated 16.03.2010 for the Period 2007-08 passed under JVAT Act 108 Annexure-4 Impugned Reassessment Proceeding for 2007-08 u/s 42(3) initiated vide order sheet dated 30.07.2014 contained in the Entire Order Sheet wherein the A.O. has not recorded his own satisfaction 111 Annexure-5 Impugned Notice for hearing dated 30.07.2014 for 2007-08 u/s 42(3) of JVAT Act with audit objection wherein the A.O. has not recorded his own satisfaction. 115 Annexure-7 Impugned Reassessment-cum-penalty Order dated 2....
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....118 Annexure-7 Impugned Pursuant to the above re-assessment order, a Demand Notice dated 11.06.2012 was issued 121 (vii) M/s Larsen & Toubro Ltd. W.P.(T) No. 2325 of 2016 Period-2009-10 Relevant Annexures Barred by Limitation (31.03.2015) Annexures Particulars Page No. Annexure-2 and 2/1 Original Assessment Orders both dated 23.03.2013 for the Period 2009-10 passed under the provision of JVAT and CST 100-110 Annexure-3 Being aggrieved with aforesaid Original Assessment orders, the petitioner filed a revision petition before the Commissioner of Commercial Taxes u/e 80 of the JVAT Act, which were remanded back by common order dated 25.07.2013 granting the opportunity to the petitioner to produce the required statutory forms 111 Annexure-4 and 4/1 Pursuant thereto, revised Assessment Order Passed on 09.10.2015 and on 02.06.2015 under the provision of JVAT and CST Act respectively, reducing the tax liability. 112- 120 Annexure-5 and 5/1 Notice granting opportunity of hearing u/s 42(3) of the JVAT Act dated 05.04.2014 for 2009-10 with audit objection. (under JVAT and CST) The A.O. has not recorded his own sati....
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....aid proceeding was void ab initio and so assessing officer initiated proceedings on 03.04.2018 under Section 42(3) of the JVAT Act, 2005 which was barred by limitation. Notice was issued for re-assessment on 17.06.2018 which is barred by limitation. 93 27.06.2018 Notice for Hearing wherein proceeding for re-assessment has been initiated u/s 42(3) of JVAT Act pursuant to Audit Objection bearing IR No. 110/2016-17. 118 Annexure-18 (Impugned) Jharkhand Gazette dated 30.09.2011 publishing Jharkhand Act 22, 2011 i.e. Jharkhand Value Added Tax (Amendment) Act, 2011 126 7. Having heard learned counsel for the parties and after going through the impugned orders and also the judgment passed by this Court in Jharkhand Ispat Pvt. Ltd. (supra), it appears that the issue involved in this writ application is squarely covered by the aforesaid judgment. 8. For brevity paragraphs 6 to 15 is extracted hereinbelow:- "6. After hearing the counsel for the parties, we are of the opinion that short question involved in the instant writ application is whether the proceeding for reassessment initiated beyond the prescribed under the Act, is barred by limitation or not, a....
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.... upon the prescribed authority in the form of limitation and provides inter-alia, that no such proceeding for assessment or reassessment shall be initiated after the expiry of five years from the end of the year in respect of which or part of which the tax is assessable. 9. A bare reading of the said provisions clearly reveals that the period of limitation of 5 years have been prescribed under the Act and a plain reading of the said provision would reveal that the period of limitation prescribed under the Act does not demarcate between the situations where the tax is under assessed or escaped assessment for any reason whatsoever, and the limitation is un-extendable. 10. It is trite law that taxing statute is to be strictly construed and the subject is not to be taxed without clear words for that purpose contained in the taxing statute. Reference in this regard may be made to Constitutional Bench decision of the Hon'ble Supreme Court in the case of "Commissioner of Customs (Import), Mumbai Vrs Dilip Kumar and Company and others" reported in (2018) 9 SCC 1. In the said judgment, the Hon'ble Supreme Court, vide paragraph-30, has held as under:- 30. ........"....
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....circumstances of the present case as the said judgments were dealing with the statute which provided reckoning of extended period for limitation where action was to be initiated due to reasons of fraud, misrepresentation and/or wilful suppression by an Assessee. 12. One further reason for which we are unable to accept the arguments advanced by the counsel for the respondents, is due to the provisions contained under Rule-38 of the Jharkhand Value Added Tax Rules, 2005 (in short "JVAT Rules, 2005) which contains provision regarding the records to be maintained by a VAT dealer. A bare perusal of Rule-38 of the JVAT Rules, 2005 would reveal that a VAT dealer is required to maintain true and correct accounts of its business transactions and several books of accounts etc, is required to be maintained by it in respect of each assessment year. However, Rule-38(3) of the JVAT Rules, 2005 provides inter-alia that the records to be maintained by a dealer under the Rule is required to be retained and made available for inspection, audit, verification etc for a period of five years only. For the sake of ready reference, Rule-38(3) of the JVAT Rules, 2005 is quoted hereunder:- ....
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....assessment order could have been passed latest by 31.03.2012 but the same was passed on 17.06.2014, therefore, the same is barred by limitation u/s 40(4) of the Act. 10. In W.P.(T) No. 4415 of 2014, since the case relates to the year 2007-08, the reassessment order could have been passed latest by 31.03.2013 but the same was passed on 02.06.2014, therefore, the same is barred by limitation u/s 40(4) of the Act. 11. In W.P.(T) No. 486 of 2016, since the case relates to the year 2008-09, the reassessment order could have been passed latest by 31.03.2014 but the same was passed on 12.09.2014, therefore, the same is barred by limitation u/s 40(4) of the Act. 12. In W.P.(T) No. 6226 of 2014, since the case relates to the year 2007-08, the reassessment order could have been passed latest by 31.03.2013 but the same was passed on 12.09.2014, therefore, the same is barred by limitation u/s 40(4) of the Act. 13. In W.P.(T) No. 6562 of 2012, since the case relates to the year 2006-07, the reassessment order could have been passed latest by 31.03.2012 but the same was passed on 06.06.2012, therefore, the same is barred by limitation u/s 40(4) of the Act. 14. In W.P.(T) No. 2324 ....