HINDUSTAN CONSTRUCTION COMPANY LIMITED Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present writ petition has been preferred against the exparte order of assessment passed by the Commercial Taxes Officer, Koderma Circle, Koderma dated NIL, under the Jharkhand Value Added Tax Act, 20052 (hereinafter referred as "the Act, 2005", for the sake of brevity).

(2.) Learned counsel appearing for the petitioner submitted that the impugned order at Annexure14 is an exparte order without giving any opportunity of being heard to the petitioner. Even otherwise on merit also, the exparte assessment order is not tenable at law. Learned counsel appearing for the petitioner has taken this Court to various annexures of this writ petition including the order sheet of the assessment proceedings for the assessment year 2010-11 from which also it is very clear that notice was never served upon the petitioner upon whom liability of tax of approximately Rs. 90 Lakhs is imposed. It is further submitted by learned counsel for the petitioner that had an opportunity been given to the petitioner, the true and correct facts would have been pointed out by the petitioner that there is no sale of the goods as mentioned in the exparte assessment order, but, it is stock transfer of machineries from different branches of the petitioner situated in different States, as stated in paragraph 12 of the writ petition. The contentions of the writ petitioner have been supported by necessary documentary evidences annexed with the memo of this writ petition and it is submitted on the basis of these documentary evidences that upon stock transfer, no Value Added Tax is leviable. It is also submitted by learned counsel for the petitioner that whenever there is violation of principles of natural justice, the impugned order will be arbitrary and whenever there is arbitrariness, there is breach of right of equality and, hence, impugned order is also violative of Article 14 of the Constitution of India and, hence, there is violation of fundamental right of the petitioner and, therefore, instead of sending the petitioner to any other authority, let the matter be remanded to the Commercial Taxes Officer, Koderma Circle, Koderma and the petitioner will remain present through its representative on the date and time given by this Court so that without any delay, a true, correct and legal assessment order can be passed, within stipulated time given by this Court. The petitioner will not ask for any unnecessary adjournment. Learned counsel for the petitioner has relied upon decisions rendered by the Hon'ble Supreme Court reported in (1998) 8 SCC 1 (Paragraphs 14 and 15) and decision reported in (1986) 2 SCC 103 (Paragraph 11) and several other decisions and has submitted that in the peculiar facts and circumstances of this case that a tax payer upon whom approximately Rs. 90 Lakhs tax liability is imposed, ought to have been given an opportunity of being heard. Even otherwise also, this Court will take at least four weeks' time after filing the affidavit by the respondents and, therefore, meanwhile fresh assessment order can be passed by the assessing officer and this order can be passed, if the State Government is ready as on today.

(3.) We have heard learned Additional Advocate General appearing on behalf of the State, who has submitted that from the documents on record, nothing is coming out that the notice was served upon the petitioner. Nonetheless, there is efficacious alternative remedy available to the petitioner and he can prefer an Appeal under Section 79 of the Act, 2005 or a Revision under Section 80 of the Act, 2005. It is also submitted by learned Additional Advocate General that it is true that if the counter affidavit is to be filed and thereafter the matter is to be decided in this Court, it will take minimum four weeks time.