BHARAT COKING COAL LIMITED Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) IN these applications under Article 226 of the Constitution of India, the petitioner - M/s. Bharat Coking Coal Limited seeks a direction upon the respondents to issue a demand notice showing excess payment of advance sales tax and central sales tax paid by the petitioner according to returns for the year 1986 -87 so that the petitioner can make an application for refund of the said amount in the prescribed form and further for a direction for refund of the excess amount in view of the fact that the original assessment order dated 30.11.1990 has been set aside by the appellate authority.

(2.) THE petitioner -unit is registered under the Bihar Finance Act, 1981 and has been filing returns under the said Act and also under the Central Sales Tax Act, 1956 before the Commercial Taxes Authority, Sindri Circle, Jharia. In compliance to the notice issued for assessment for the year 1986 -87, the representative of the petitioner appeared before the Assessing Authority who passed an order of assessment dated 30.11.1990 and served demand notice upon the petitioner showing huge demand of tax. Being aggrieved by the said assessment order, the petitioner preferred appeal before the Joint Commissioner of Commercial Taxes (Appeals), Dhanbad being SD ST -12/90 -91 who after hearing the parties set aside the assessment order and remanded the matter back to the Assessing Authority for passing a fresh order of re -assessment in the light of the directions and observations made in the said order. It is stated by the -petitioner that the appellate order dated 29.4.1992 was communicated to the petitioner as well as the Assessing Officer and in pursuant to the appellate order of remand, it was incumbent upon the assessing authority to initiate re -assessment and complete it before the expiry of two years within the date of communication of the aforesaid appellate order. In pursuant to the directions issued by the appellate authority the assessing authority directed the petitioner to appear with complete books of accounts for the year 1986 -87. The petitioner's case is that hearing of the case was adjourned time to time and several dates were fixed, but no reassessment order has been passed till date, although the same should have been passed before the expiry of two years from the date of communication of the appellate order. The petitioner's further case is that, for non -passing of re -assessment order within two years from the date of communication of the appellate order, the entire payment made by the petitioner for the years 1986 -87 is refundable to the petitioner. Further case of the petitioner is that the Assessing Officer instead of issuing demand notice showing excess payment or giving refund of the same, issued several notices dated 4.5.2001, 30.7.2001 and 17.9.2001 directing the petitioner to produce the various documents for the purpose of passing reassessment order. It is stated by the petitioner that in compliance of the said notices, the petitioner stated that as per express provision of Section 24 of the Act, no re -assessment order could be passed at that stage. The contention of the petitioner is that the petitioner is entitled for the refund of the entire advance/admitted tax amounting to Rs. 25,90,987/ -, and Rs. 99,41,375.10 being the central sales tax since there has been no determination of the tax payable by the petitioner by Assessing Officer by passing re -assessment order.

(3.) WE have heard Mr. Binod Poddar, learned Counsel appearing for the petitioner -assessee and Mr. K.K. Jhunjhunwala appearing for the Revenue.