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TMI Blog2023 (10) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proceedings of the petitioner were completed and its gross turnover was accepted and no dispute was raised with respect to intra-state stock transfer of goods. A bare perusal of Section 21(1A) of the Bihar Finance Act would reveal that if any dealer claims that he is not liable to pay any tax on the part of his turnover by reason of transfer of such goods to any other dealer or agent or principal for sale the burden of proving this claim shall be on the dealer and the dealer would furnish before the prescribed authority a declaration in the form and in the manner prescribed. Under the Rules, the declaration prescribed is Form IX-D - In the instant case, admittedly, the dealer-Tata Steel Ltd. stock transferred its goods to its Jamshedpur Unit for captive consumption and not for sale and, thus, on a bare reading of Section 21(1A), it would be evident that there was no requirement of furnishing of statutory Form IX-D. A perusal of the review order would demonstrate that the review order has been passed not for correcting any mistake or error apparent on the face of record, but review order has been passed to change alleged erroneous decision which is not permissible i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 December, 2010 issued by Respondent No. 3 (Annexure-5) wherein sanction for initiation of review proceedings under Section 47 of the Bihar Finance Act, 1981 against Petitioner has been granted without recording reasons or without forming an opinion for which review proceedings were sought to be initiated against Petitioner. (iv) For issuance of further appropriate writ/order/direction, including Writ of Declaration, declaring that the review proceeding against the petitioner is void ab initio, 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. W.P.(T) No. 1765 of 2023 (i) For issuance of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 accepted. However, subsequently, an audit objection being SRA-145/2009-10, Para 1(A) was raised wherein the Auditor raised an objection with respect to intra-state stock transfer of goods made by petitioner-unit at Jamadova to its Jamshedpur Unit by contending, inter alia, that said transfer was not supported by Declaration Form IX-D as required under the provisions of the Bihar Finance Act, 1981 and, accordingly, suggestion was made to reject the claim of intra-state stock transfer made by one unit of Tata Steel Ltd. to its another unit and levy tax thereupon. Exactly similar objection was raised with respect to financial year 2005-06. 7. Pursuant to the said audit objection, Respondent No. 4 i.e. Deputy Commissioner of Commercial Taxes, Jharia Circle, Dhanbad passed an order contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. However, neither the grounds nor the copy of the letter dated 23.12.2010 were supplied to the petitioner. As a matter of fact, thereafter, even no notice was issued to the petitioner. 10. However, one fine morning, the petitioner received a Demand Notice bearing No. 81 dated 09.06.2020 for the Assessment Year 2004-05 (Annexure-7), wherein petitioner was demanded tax on intra-state stock transfer made by Jamadova Colliery of the petitioner to its Industrial Unit at Jamshedpur. Thereafter, the petitioner applied for certified copy of the Review Order and, for the first time, received copy of the Review Order dated 27.09.2012 on 29.06.2020, which was an ex parte order passed against the petitioner, wherein on the transaction of intrastate stock transfer from Jamadova Colliery to its Jam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance 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 reliance in this regard was placed upon following decision of the Hon ble Apex Court:- (i) Larsen and Toubro Limited v. State of Jharkhand Ors, reported in (2017) 13 SCC 780 (Paras 3 to 6, 11 to 13, 33, 34, 35). (e) Assailing the order of sanction, it was also submitted that the order of sanction does not reflect any application of mind by the sanctioning authority and on mere asking of the Assessing Authority, sanction has been accorded, which is contrary to settled principles of law that sanction/approval ought not to be granted mechanically. In this regard following decisions of the Hon ble Apex Court has been referred:- (i) Rajesh Kumar Ors v. DCIT Ors, reported in (2007) 2 SCC 181 (Paras 27, 42, 58); (ii) Sahara India (Firm) Lucknow v. CIT, Central, reported in (2008) 14 SCC 151 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 averments made therein it transpires that Petitioner-Tata Steel Ltd. is having its industrial unit at Jamshedpur wherein it is engaged in manufacturing of Iron and Steel. It has its colliery in the District of Dhanbad known as Jamadova Colliery and from the said colliery, coal is being extracted and stock transferred to its unit at Jamshedpur in the District of East Singhbhum for captive consumption, which is intra-state stock transfer . Original assessment proceedings of the petitioner were completed and its gross turnover was accepted and no dispute was raised with respect to intra-state stock transfer of goods. Thereafter, office of the Accountant General raised audit objection vide Audit Objection No. SRA 145/2009-10 Para 1(A), and following objections were raised:- Audit Objection:- On scrutiny of assessment order and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 this purpose along with other evidences he shall furnish before the prescribed authority a declaration in the form and in the manner prescribed. 17. A bare perusal of Section 21(1A) of the Bihar Finance Act would reveal that if any dealer claims that he is not liable to pay any tax on the part of his turnover by reason of transfer of such goods to any other dealer or agent or principal for sale the burden of proving this claim shall be on the dealer and the dealer would furnish before the prescribed authority a declaration in the form and in the manner prescribed. Under the Rules, the declaration prescribed is Form IX-D. In the instant case, admittedly, the dealer-Tata Steel Ltd. stock transferred its goods to its Jamshedpur Unit for captive consumption and not for sale and, thus, on a bare reading of Section 21(1A), it would be evident that there was no r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 is apparent from the record. Provided that no such review, if it has the effect of enhancing the tax or penalty or both, or of reducing a refund shall be made unless the said authority or the Tribunal, as the case may be, has given the dealer, or the person concerned a reasonable opportunity of being heard. A bare perusal of the aforesaid section would reveal that review proceedings are limited to correcting mistake/error apparent on the face of the record. A perusal of the review order would demonstrate that the review order has been passed not for correcting any mistake or error apparent on the face of record, but review order has been passed to change alleged erroneous decision which is not permissible in the eye of law. Reference in this regard may be made to numerous decisions of Hon ble Apex Court, wherein it has been clearly held that power of review is limited to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for quashing of the ex-parte review order, which was not even communicated to the petitioner. 25. That apart, we are further not convinced with the arguments advanced by the State of Jharkhand that the petitioner should be relegated to avail the alternative remedy of appeal for assailing the review orders, as in our opinion, the very initiation of the review proceedings pursuant to Show Cause Notice dated 04.01.2011 was void ab initio, as neither any satisfaction was recorded by the Assessing Authority nor any reason was assigned for initiation of review proceedings. 26. It is a settled law that vague show cause notice lacking details amounts to violation of the principles of natural justice and in that view of the matter, we are inclined to entertain the present writ applications. 27. In any event, we have analyzed the provisions of Section 21(1A) of the Bihar Finance Act and we are of the opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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