ACC LIMITED Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner has filed the instant application praying for quashing the ex parte order of assessment dated 12.01.2019 passed by the Assistant Commissioner State Tax, Special Circle, Patna under section 8(2) of the Bihar Tax on Entry of Goods in to Local Areas for Consumption, use or sale Therein Act, 1993 (hereinafter referred to as 'the BTEG Act, 1993) read with section 39(2) of the Bihar Value Added Tax Act, 2005 (hereinafter referred to as 'the BVAT Act') for the period 2015- 2016 by which a sum of Rs. 13,32,32,322/- has been worked out as the dues payable by the petitioner under the head of entry tax and together with the interest on the said amount to the tune of Rs. 6,79,48,484/- the petitioner has been directed to make payment of a total sum of Rs. 20,11,80,806/- for the period 2015-16 as entry tax. The petitioner further prayed to restrain the respondents from taking steps for realization of the aforesaid amount of tax and interest mentioned in the impugned order of assessment and demand notice.

(2.) It is the case of the petitioner that the petitioner is a company engaged in the business of sale of cement having sale units across the country, one of which is located in S.P. Verma Road in the town of Patna. For the period 2010-11, the petitioner paid Rs. 14,18,09,180/- on 27.03.2014 and Rs. 1,88,56,180 on 27.02.2014 as entry tax. By order contained in memo no. 391 dated 31.03.2015 issued under the signature of the Joint Commissioner Commercial Taxes, Patna, order of refund of tax by adjustment under the Bihar Value Added Tax Ordinance, 2005 was issued with respect to the petitioner. It was ordered that for the year 2010-11 a refund of Rs.15,04,59,365/- was due under Rule 43/Rule 44 of the Bihar Value Added Tax Rules, 2005 and that the said refund was to be adjusted towards entry tax dues for the period 2014-15. It is the case of the petitioner that he utilized the said refund by taking adjustment against liability of entry tax for the months of April, May and June of 2015 and these facts were duly shown in Form ET-03 for the said months, which has been brought on record as Annexure 2 series to the application.

(3.) During pendency of the application a supplementary affidavit has been filed on behalf of the petitioner bringing on record an assessment order dated 22.06.2019 (Annexure 12 to the application) issued under the signature of the Assessing Officer on completion of the assessment proceeding for the period 2014-15 (entry tax). From perusal of the said order it would transpire that the petitioner was given the credit of a sum of Rs. 15,04,59,365/- by 'refund adjustment note'. Taking into consideration the payment of Rs. 93,28,36,157/- as against the entry tax dues of Rs. 77,95,15,176/-, a net sum of Rs. 15,33,20,981/- was found refundable to the petitioner and it was stated/ordered that the said amount was being forwarded for adjustment against the entry tax dues for the next year i.e. 2015- 16.