9911796707
TMI Blog2012 (3) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner is also aggrieved by the subsequent demand notice No. 527 dated August 13, 2011(annexure 8) raised by the Deputy Commissioner of Commercial Taxes, Jharia Circle, Dhanbad, pursuant to its order dated August 13, 2011 whereunder an order of assessment under the Jharkhand Value Added Tax Act has been passed holding a liability of ₹ 19,99,496.68 together with a penalty of ₹ 39,98,993.36 under section 37(6) of the Jharkhand Value Added Tax Act, 2005 (hereinafter referred to as the Act of 2005 ). The facts in brief leading to the issuance of the aforesaid impugned order dated August 13, 2011 and the demand notice of the same date are as follows: The petitioner-company is engaged in the manufacturing of iron and steel products at its integrated steel plant at Jamshedpur in the State of Jharkhand. It has its coal mines at Jamadoba and Bhelatand within the State of Jharkhand. The petitioner is separately registered in Jharia Circle, Dhanbad. for its activities in relation to Jamadoba and Bhelatand colliery having Registration No. 20671800791 under the Act of 2005. The assessment proceeding under the Act of 2005 for the financial year 2007-08 was concluded by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 40 of the Act of 2005, which deals with the turnover escaping assessment, whereas no proceeding in accordance with the provisions of the said Act read with rule 59(1) of the Jharkhand Value Added Tax Rules, 2006 in the prescribed form JVAT 302 was issued to the petitioner. The petitioner has also assailed the further penalty issued under the impugned order, as no notice under section 37(6) of the Act of 2005 had been issued giving opportunity of hearing to the petitioner. The respondents have appeared and filed their counter-affidavit, inter alia, supporting the impugned order and the notice of demand contesting the claim made on the part of the petitioner. The respondents have also stated that reasonable and sufficient opportunity was accorded to the petitioner by service of notice under memo No. 365 dated July 16, 2011 along with which audit objection was, also annexed. The petitioner appeared and filed a detailed reply, which was not found convincing by respondent No. 4 and accordingly, the impugned order was issued. The respondents have further justified the imposition of penalty under the provisions of section 37(6) on the ground that on a fair reading of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a registered dealer is selected for audit assessment by the prescribed authority on the basis of any criteria or on random basis; or (c) the prescribed authority is not satisfied with the correctness of any return filed under section 29; or bona fides of any claim of exemption, deduction, concession, input-tax credit or genuineness of any declaration, evidence furnished by a registered dealer in support thereof; or (d) the prescribed authority has reasons to believe that detailed scrutiny of the case is necessary. The prescribed authority may, notwithstanding the fact that the dealer may have already been assessed under section 35 or 36, serve on such dealer, in the prescribed manner, a notice requiring him to appear on a date and place specified therein, which may be business premises or at a place specified in the notice, to either attend and produce or cause to be produced the books of account and all evidence on which the dealer relies in support of his returns including tax invoice, if any, or to produce such evidence as specified in the notice. (2) The dealer shall provide full cooperation and assistance to the prescribed authority, to con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing it to present with the relevant books of account and other evidences to explain its stand on the ground on which the exercise for audit assessment is being made under the conditions enumerated in the provisions of section 37(1)(a), (b), (c), (d). The assessing officer after consideration of the reply and the evidence produced in course of proceeding or collected by him and on being satisfied that: (a) a registered dealer has failed to furnish any return under subsection (1) of section 29 in respect of any period; or (b) a registered dealer is selected for audit assessment by the prescribed authority on the basis of any criteria or on random basis; or (c) the prescribed authority is not satisfied with the correctness of any return filed under section 29; or bona fides of any claim of exemption, deduction, concession, input-tax credit or genuineness of any declaration, evidence furnished by a registered dealer in support thereof; or (d) the prescribed authority has reasons to believe that detailed scrutiny of the case is necessary; Shall assess to the best of his judgment, the amount of tax due from such dealer. Section 37(6) provides that if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... templated notice under section 37(6) as has been submitted on the part of the petitioner. The petitioner has relied upon the judgments reported in the case of Usha Saks (Pvt). Limited v. State of Bihar reported in [1985] 58 STC 217 (Patna) and in the case of Bihar Plastic Industries Limited v. State of Bihar reported in [2000] 117 STC 346 (Patna) in relation to the question relating to issuance of proper notice. The judgment of Usha Sales (Pvt). Limited [1985] 58 STC 217 (Patna) has also been referred to in the subsequent case in Bihar Plastic Industries Limited [2000] 117 STC 346 (Patna). The matter related to escaped assessment in the case of Usha Sales (Pvt). Limited [1985] 58 STC 217 (Patna), whereas in the instant case, the petitioner was served with copy of the audit objection along with notice dated July 16, 2011, asking it to appear explaining its stand with necessary documents and books of account unlike in the case of Bihar Plastic Industries Limited [2000] 117 STC 346 (Patna), wherein a copy of the audit objection report was not annexed to the notice. In any case the petitioner had understood the scope of the notice and what it was required to explain. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 37(6) of the Act of 2005 including the requirement of notice as contemplated thereunder. The honourable Supreme Court of India has time and again held that if an efficacious alternative statutory remedy is available to the aggrieved person, the High Court ordinarily will not entertain a petition under article 226 of the Constitution of India. This rule applies with greater rigour in the matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In the case of United Bank of India v. Satyawati Tondon reported in [2010] 8 SCC 110, while dealing with the rule of exhaustion of alternative remedy, the honourable Supreme Court, after consideration of a number of decisions laid down by the Supreme Court earlier, clearly held that in matters involving revenue where statutory remedies are available, the High Court must insist that before availing of the remedy under article 226 of the Constitution of India, a person must exhaust the remedy available under the relevant statute. The petitioner has an efficacious alternative statutory remedy in the form of appeal or revision before the prescribed authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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