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TMI Blog2021 (6) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... ri, for quashing/setting aside the assessment order allegedly dated 12.03.2014 pertaining to the assessment year 2010-11 (VAT Proceeding) as contained in Annexure-3, and declaring the said assessment order being void ab-initio especially because the said assessment order has been passed antedated and beyond the period of limitation of three years as prescribed under the Jharkhand Value Added Tax Act, 2005; (ii) For issuance of further appropriate writ(s)/ order(s)/ direction(s), including Writ of Certiorari for quashing/setting aside the Demand Notice bearing no. 7123 allegedly dated 12.03.2014 which has been served upon the petitioner on 3rd August, 2018, as contained in Annexure-2, directing the petitioner to make payment of disputed amount by 13th August, 2018 especially because the said demand notice has also been passed antedated and beyond the period of limitation as stipulated under the Jharkhand Value Added Tax, 2005; (iii) For issuance of an appropriate writ(s)/ order(s)/ direction(s), including Writ of Mandamus directing the Respondent No. 1 to hold enquiry and fix responsibility upon the responsible officers for passing antedated order dated 12.3.2014 and initiate ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y because the said demand notice has also been passed antedated and beyond the period of limitation as stipulated under the Jharkhand Value Added Tax, 2005; (iii) For issuance of an appropriate writ(s)/ order(s)/ direction(s), including Writ of Mandamus directing the Respondent No. 1 to hold enquiry and fix responsibility upon the responsible officers for passing antedated order dated 12.3.2014 and initiate appropriate disciplinary proceeding against said officers in accordance with law. In W.P. (T) No. 4173 of 2018 "(i) For issuance of an appropriate writ(s)/ order(s)/ direction(s), including Writ of Certiorari, for quashing/setting aside the assessment order allegedly dated 16.2.2013 pertaining to the assessment year 2009-10 (CST Proceeding) as contained in Annexure-4, and declaring the said assessment order being void ab-initio especially because the said assessment order has been passed antedated and beyond the period of limitation of three years as prescribed under the Jharkhand Value Added Tax Act, 2005; (ii) For issuance of further appropriate writ(s)/ order(s)/ direction(s), including Writ of Certiorari for quashing/setting aside the Demand Notice bearing no. 14233 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Rules, details of which are stated herein below: - On the point that the assessment is barred by limitation on 31.03.2014 and antedating has been done to save the limitation. (i) That as per Section 35(8) of the JVAT Act, 2005, assessment order is to be passed "within three years after the end of tax period in respect of which or part of which tax is assessable." (ii) Thus, for the period in dispute, the assessment order should be passed on or before 31.03.2014 but admittedly, demand notice allegedly dated 12.03.2014 has been served upon the petitioner on 03.08.2018 which itself demonstrates that the entire assessment proceeding including demand notice has been passed ante dated by manipulating the records by the respondent authorities. On the point that there was no notice/knowledge about date of hearing on 12.03.2014 -the date of assessment order and demand notice. (iii) From bare perusal of the entire order-sheet as annexed by the Respondents (Annexure-B, page-17 of counter affidavit in WPT No. 4170/2018) it would clearly evident that although appearance on behalf of the petitioner on 12.03.2014 has been recorded, and, assessment proceedings were allegedly completed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich can be itself evident from the Counter-Affidavits filed by the Respondents. (ix) Further, the statement of Respondents in counter affidavit is totally afterthought statement by stating that "it is a clerical error of non- dispatch of the demand notice which may have occurred due to inadvertence". (x) That in context of the above, petitioner is placing reliance of the decision of the Hon'ble Supreme Court passed in the Case of State of A.P. Vs. M. Ramaishtaiah reported in (1994) 93 STC 406 wherein under similar facts of the case, the Hon'ble Apex Court has held that "in absence of proper explanation for delay in service of notice, it shall be presumed that order has not been made on the date it purports to have been made". (xi) The aforementioned decision of the Hon'ble Supreme Court has been followed by the Hon'ble Odisha High Court passed in the Case of M/s. Delhi Foot Wear Vs. Sales Tax Officer & Ors. reported in (2015) 77 VST 146 and Hon'ble Jharkhand High Court in the case of M/s. Gaurang Alloys and Iron Ltd. Vs. The State of Jharkhand & Ors. Reported in (2013) 63 VST 354 (Jhar.) (xii) Further, petitioner is placing reliance upon the judgment of Hon'ble Kerala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the JVAT Act, 2005, a dealer has remedy of challenging the assessment order before the following authority: - Appeal before Joint Commissioner of Commercial Taxes, Dhanbad Division, dhanbad in terms of Section 79 of the JVAT Act, 2005 read with Rule 47 of the JVAT Rules, 2006 or, Revision before Commissioner of Commercial Taxes, Jharkhand at Ranchi under Section 80 of the JVAT Act, 2005 read with Rule 47 of the JVAT Rules, 2006. d) That as per aforesaid provisions, an assessee has to file its appeal within a period of thirty days from the date of communication of demand notice and similarly, for the revision, the limitation period is prescribed as ninety days and the filing of appeal/revision beyond such period is subject to showing of "Sufficient reasons" before the respective authority. (xvi) That further, the impugned orders and demands have been given light of the day on 03.08.2018 and thus, the said date shall be deemed to be the effective date of the impugned order. (xvii) Further, if a Right which is recognized by the State is violated then the state provides a remedy. The Legal Maxim Ubi Jus Ibi Remedium means "Where there is a right, there is a remedy". But, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Circle of the answering respondents which is also mentioned in the order sheet dated 03.08.2018, so question of antedated Assessment order & demand Notice does not arise at all and also the Assessment order is well within the period of Limitation. The Assessment order dated 16.02.2013 was passed subsequent to two hearing on 04.02.2013 (Partial hearing) & 16.02.2013 & Demand was also raised on same date that is 16.02.2013 (Annexure-D,E & F). v. That Section 51 of the JVAT Act is also relevant for the purpose of the present cases. The same reads as under": "Period of limitation for Recovery of Tax-Notwithstanding anything contained in any law for the time being in force, no proceeding for recovery of any amount under sub sections (7) and (8) of Section 43 and sub section (6) of Section 47 shall be initiated after the expiry of twelve years from the date of the relevant assessment. Provided that when an appeal or revision has been filed, the period of limitation shall run from the date on which the amount due is finally determined." vi. It would also be worthwhile to state herein that the Assessing Officer who passed the assessment order was transferred and relieved from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt orders and demand notices are antedated which has been done by manipulating the records and consequently, the assessments having been done beyond the statutory period, though antedated, are void ab initio. Learned counsel has also referred to Section 43(4) of the JVAT Act, 2005 read with Rule 27 of the JVAT Rules, 2006 to indicate that under normal circumstances, 30 days' time is provided for payment of tax demand. 10. The second point argued is that the action of the respondents has caused serious prejudice to the petitioner. For this he has referred to Rule 38 (3) of JVAT, Rules to submit that a dealer is required to maintain the records for the period of five years in respect of each assessment year and accordingly the petitioner has not retained the records for the assessment years, 2009-10 and 2010-11 and under such circumstances the petitioner has been left remediless against the impugned assessment orders. It has been submitted that the petitioner is not in possession of any records or documents to contest the alleged demands raised by the impugned assessment orders as more than five years have elapsed from the end of the assessment years, 2009-10 and 2010-11. 11. Admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch were duly accepted by the assessing officer for both CST and JVAT proceedings. In the CST proceedings the assessing officer only rejected the claim of e-1 sales by the petitioner for want of statutory forms i.e. e-1 form and form C. Apart from that certain penalty was imposed on account of delay in statutory compliance. In the JVAT proceedings the assessing officer only rejected the claim of sales return in absence of credit notes. Apart from that certain penalty was imposed on account of delay in statutory compliance/statutory non- compliance. Period 2010-11 (CST and JVAT) 15. For the period 2010-11, it is the specific case of the petitioner that the petitioner on repeated occasion through its representative and/or its advocate enquired about the status of Assessment orders of the petitioner pertaining to the assessment year 2010-11, but all along the petitioner's representative was informed that the assessment orders have not been passed. The period of limitation for completion of assessments expired on 31.03.2014 and the petitioner was communicated the demand notices for the first time in the year 2018. Upon receipt of this demand notices for the period 2010-11, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separate sheets. The assessment orders also record appearance of the counsel of the petitioner along with books of account of the petitioner and other documents which reflects passing of assessment orders after consideration of the books of accounts and other documents of the petitioner. 18. The petitioner has filed rejoinder in WPT NO 4173/18 relating to the period 2009-10 (CST) and in WPT NO. 4175 /18 relating to the period 2010-11 (VAT) and has submitted that although no separate rejoinders have been filed in other two cases , the aforesaid rejoinders may be treated as rejoinders for the respective analogous case of the same year and he has referred to the aforesaid two rejoinders to cover all the four cases. 19. In the rejoinders, the petitioner has stated that in order to confirm the appearance of the assessee or representative and/or Advocate on behalf of the assessee at the time of assessment proceedings, the Assessing Officer takes the signature of the said person on the margin of the order-sheet and in the instant case, there is no initial and/or no signature of the learned Advocate namely Shri A.K. Chakraverty, who is alleged to have appeared before the assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plete denial about the participation of the petitioner /his counsel in the assessment proceedings, no affidavit of the concerned counsel has been filed to explain as to what happened in the assessment proceedings on the date of hearing. The order-sheets and the assessment orders clearly demonstrate that the assessment orders were passed on the same day as mentioned in the impugned orders of assessments. There is enough material on record, as indicated above, that the petitioner had appeared before the assessing Authority on the date of passing the assessments orders along with books of accounts and other documents through his counsel who also filed his attendance and the hearing was concluded and assessment orders were passed on the same date. 21. The fact that the petitioner applied for the entire order sheets as well as the assessment orders way back in the year 2013 for the financial year 2009-10 (both CST and JVAT) also indicates that the petitioner had knowledge that the proceedings have concluded and assessment orders were passed. What happened after filing of application for certified copies is not clear from the records, but, the fact remains that the petitioner also neith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as per the records, the demand notices are not served and accordingly it was directed to serve the demand notices through e-mail fixing the date of payment dated 13.08.2018. It has also been mentioned in supplementary counter affidavit that the dealing clerk, namely Sri Ashok Kumar Srivastav was succeeded by another dealing clerk Sri Brij Kumar with effect from 17.11.2014 and he was also succeeded by another dealing clerk Sri Sanjiv Kumar Jha with effect from 29.08.2015 onwards and the department has taken steps to fix the responsibility on the concerned dealing clerk for non-dispatch of the demand notices to the petitioner. 23. The order-sheets reflect full participation of the petitioner in the assessment proceedings through his counsel as well as passing of the order of assessment on the same date on which assessment proceedings were concluded and the order-sheet also reflects the quantification of tax/penalty, assessment order drawn in separate sheet and direction to the office to issue demand notice after verification of payment and further the order of assessment reflects direction to make necessary entry in register VI. The counter affidavit reflects that entries were mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are concerned with notice of demand of tax and penalty in Form JVAT 300. Subsection (3) provides that if any dealer makes an application with a court fee stamp of ten rupees, after service of Notice in Form JVAT 302 for any period, but before the issue of notice of demand in Form JVAT 300 asking for a copy of order of assessment/penalty/interest or any other order concerning with the demand notice, a copy of such order may be supplied to him, along with the Notice of Demand. It also provides that even if the demand of any period is NIL, but such application has been made, a copy of such order may be, nevertheless, be supplied. 28. Passing of order of assessment and issuance of demand notice are two different stages. Passing of assessment order is followed by verification of payments made by the assessee , preparation of demand notice , entry made in dispatch register and issuance of demand notice to the assessee and this is also coupled with entry in register VI . The limitation for completion of assessment is three years from the end of the financial year under section 35(8) but demand is recoverable as an arrear of land revenue under rule 17(4) and section 51 provides that fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd accepted at the time of assessment itself. So far as merit of the assessment orders are concerned, none of the documents of the petitioner were rejected and whatever submissions were made by the petitioner on the basis of records were accepted by the assessing authority. In spite of the production of entire records the claim of the sales return could not be substantiated by the petitioner and certain claims of e-1 sales were rejected on account of want of statutory forms. Accordingly, no prejudice has been caused to the petitioner even it is assumed that the petitioner does not possess the relevant books of accounts and other documents after expiry of five years from the end of the tax periods involved in these cases. The period of limitation to challenge the assessment order commences from the date of service of demand notice and not from the date of the assessment order. In view of the aforesaid, the argument of the petitioner that the petitioner was rendered remediless on account of delay in service of demand notices is also devoid of any merit and is accordingly rejected. 32. The judgements relied upon by the parties are considered as under. i. It has been held by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a proper explanation it would have been a different matter. iv. The said judgment reported in (1994) 93 SCC 406 was followed by Hon'ble Andhra Pradesh High Court in the case reported in (2005) 142 STC 496 as in the said case also there was no explanation for delay in dispatching the order either in the records or otherwise as no counter was filed. The said two judgments were followed by Hon'ble Orissa High Court in the case reported in 2014 SCC Online Ori 340 (M/s Delhi Foot Wear vs. Sales Tax Officer) where one of the questions which fell for consideration was: - "whether the order of assessment has been antedated and passed beyond the period of limitation?" While answering the said question the Hon'ble High Court held as follows: - "In the instant case, there is no explanation for inordinate delay of 24 months caused in issuing the assessment order to the petitioner. Therefore, we have no hesitation to hold that the order of assessment under Annexure-1 was not made on the date it was purported to have been made. In order to bring the assessment within the period of limitation, the order of assessment bears the date 12.01.2007, whereas it has been passed much after that." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessing officer who passed the assessment order was transferred and relived on 15.09.2014 after passing the assessment orders and as such the aspersion made by the petitioner is unfounded. It has also been stated that all the documents maintained in the office particularly register VI and process register are showing the corresponding entry in continuity and at best it is a clerical error of non- dispatch of the demand notice which may have happened due to inadvertence. It has also been mentioned in the counter affidavit that the headquarters of the respondent department issued a general order on 03.07.2018 with regard to pre-GST period cases pertaining to claim of refund and in course of examination of all cases, the case of the petitioner came to light and an order dated 3.08.2018 was drawn which indicated that as per the records, the demand notice is not served and accordingly it was directed to serve the demand notice through e-mail fixing the date of payment dated 13.08.2018. It has also been mentioned in supplementary counter affidavit that the dealing clerk, namely Sri Ashok Kumar Srivastav was succeeded by another dealing clerk Sri Brij Kumar with effect from 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate the order, the order could not be said to have been made, for communication of such order is an essential part of making such order. This is naturally so, for any authority who writes out an order and signs it is free to change it at any time before it is communicated. It is not final at all, for the authority may become wiser on information supplied to it or otherwise and may choose to change the order at any time before it is despatched to the party against whom it operates." The Hon'ble Kerala High court had ultimately remanded the matter to the tribunal for examination of the records as to ascertain whether the orders of the deputy commissioner had been issued from his office within the prescribed period of four years. The aforesaid judgement does not help the petitioner. As already discussed above, the facts of the instant cases clearly suggest that the assessments orders were passed on the same date on which the petitioner had appeared through his counsel and were also released from his office as it was followed by corresponding entries in Register VI and process register showing corresponding entry in continuity, which indicate that the assessment orders also moved ..... X X X X Extracts X X X X X X X X Extracts X X X X
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