Allahabad High Court
M/S. Ramky Infrastucture Limited vs State Of U.P. And 2 Others on 1 November, 2018
Equivalent citations: AIRONLINE 2018 ALL 4812
Bench: Pankaj Mithal, Ashok Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 29 Case :- WRIT TAX No. - 1054 of 2018 Petitioner :- M/S. Ramky Infrastucture Limited Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shubham Agrawal Counsel for Respondent :- C.S.C. And Case :- WRIT TAX No. - 1055 of 2018 Petitioner :- M/S Ramky Infrastructure Limited Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shubham Agrawal Counsel for Respondent :- C.S.C. And Case :- WRIT TAX No. - 1058 of 2018 Petitioner :- M/S Ramky Infrastructure Limited Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shubham Agrawal Counsel for Respondent :- C.S.C. And Case :- WRIT TAX No. - 1059 of 2018 Petitioner :- M/S Ramky Infrastructure Limited Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shubham Agrawal,Sanyukta Singh Counsel for Respondent :- C.S.C. Hon'ble Pankaj Mithal,J.
Hon'ble Ashok Kumar,J.
All the petitions are by the same petitioner. The petitioner is a Public Limited Company engaged in executing work contracts and is registered under the U.P. Value Added Tax Act, 2008 (hereinafter referred to as the Act).
The petitioner alleges that there was no tax liability upon it either under the Act, U.P. Trade Tax Act or Entry Tax for the assessment years 2000-01 to 2008-09 as it had been granted benefit of composition scheme under Section 7D of the U.P. Trade Tax Act in respect of the work contracts awarded to it prior to the year 2008.
The above writ petitions relate to the assessment year 2009-10 (Entry Tax) and assessment years 2010-11, 2011-12 and 2009-10 (U.P. VAT Act).
The petitioner by means of these writ petitions have challenged the assessment orders dated 31.03.2016 passed in the writ petitions mentioned at serial Nos. 1, 2 and 4 and the assessment order dated 31.01.2017 passed in writ petition mentioned at serial number 3 above. All the said assessment orders have been served upon the petitioner on 21.07.2018.
It may be pertinent to mention here that in respect of the above assessment years original orders of assessment passed previously were either set aside and the matters were remanded by the appellate court for passing fresh order or the orders were set aside as they were ex parte with direction to pass fresh orders.
It is in-consequence of those orders that the impugned assessment orders referred to above have been passed by the assessing authority.
The petitioner has challenged the assessment orders inter alia on the ground that there is a huge delay in the service of the copies of the orders upon the petitioner which give rise to a legitimate presumption that the orders were not actually passed on the dates mentioned in the orders rather on a much later date beyond the time prescribed.
In view of the provisions of Section 29 (5) and (6) of the Act a specific time limit has been prescribed for the Assessing Authority to pass assessment orders pursuant to the order of remand or in the event of setting aside an ex parte order.
There is no dispute to the fact that all the orders have been passed on the last date of the limitation.
Sri Shubham Agarwal, learned counsel for the petitioner has argued that all the orders have been back dated otherwise there was no occasion for such delay in service of the copies of the orders upon the petitioner. The three orders which were passed on 31.03.2016 were served upon the petitioner after 28 months whereas one of the orders passed on 31.01.2017 was served after 18 months. He has pointed out from the various enclosures to the petition and the counter affidavits that there is manipulation in the records. Due to delay in service of the orders the presumption is that the orders are barred by limitation and are without jurisdiction.
Sri C.B. Tripathi, on the other hand submits that admittedly there is a delay in serving the copies of the orders upon the petitioner but that is not enough to set aside them. The antedating of the orders is a question of fact and that as the petitioner has a remedy of appeal under Section 55 of the Act against these orders the above aspect can be very well be considered in appeal.
We find from the order sheet that the writ petitions were duly entertained and the revenue was directed file reply and at the same time the record was also summoned to examine if there is any interpolation or manipulation in the record regarding service of the copies of the orders upon the petitioner.
In the cases at hand there is no dispute to the facts that the orders of assessment were passed on 31.03.2016 in three cases and on 31.01.2017 in the fourth case. The copies of the above orders in all the cases were served upon the petitioner on 21.07.2018 i.e. with the delay of 28 and 18 months respectively.
In the counter affidavits filed by the revenue it has been admitted that 31.03.2016 was the last date of limitation for passing the assessment order after remand.
In paragraph 15 of the counter affidavit filed in all the petitions it has been admitted that there has been a delay in service of the assessment orders. The Assessing Officer, who had passed the order, was transferred and relieved on 22.06.2018 whereupon the new officer joined on 23.06.2018 as Deputy Commissioner, Sector-3, Sonebhadra. He received a telephonic message on 10.07.2018 from the Joint Commissioner, Mirzapur whereupon he looked into the matter and handed over the assessment orders to the process server on 11.07.2018 for service. The Process Server served the orders on 31.07.2018 upon the petitioners.
In short the deponent has accepted that the orders which were passed on 31.03.2016 and 31.01.2017 were handed over for service upon the petitioner on 11.07.2018 and were served on 21.07.2018. In between right from the dates of the order till the aforesaid date i.e. for 28 and 18 months respectively no efforts were made for the service of the said orders upon the petitioner primarily by the previous officer having the responsibility.
The counter affidavits are completely silent as to reason why the Assessing Officer or the Department could not take any steps for the service of the orders upon the petitioner right from 31.03.2016 or 31.01.2017 till 10.07.2018. It does not even disclose any reason why the Joint Commissioner, Mirzapur made telephonic inquiries only on 10.07.2018 and not earlier, which set the machinery into motion for service of the orders upon the petitioners.
In this manner, there is no explanation whatsoever on record as to why the orders could not be served upon the petitioner for such a long time of 28 months and 18 months respectively.
In spite of repeated query in this regard put to the Special Counsel he is unable to give any explanation and accepts that there is a delay in taking steps for service of the assessment orders which is unexplained on the basis of record. He however, made an attempt to justify the delay on the ground of misplacement of the files but that does not appear to be correct for the reason that on the telephonic message of the Joint Commissioner, Mirzapur received on 10.07.2018, the orders were handed over to the Process Server immediately on the very next date i.e. 11.07.2018 for service meaning thereby that the files were not missing at all.
Inaction on part of the authorities for a long time as in the instant case, necessarily give rise to certain presumptions and accrual of rights in favour of other parties. The said presumptions and rights cannot be washed away unless a logical and reasonable explanation for the delay is furnished. The long lapse of time in a given case may lead to some legitimate expectation on the basis of which the other party may be compelled to alter its position or may be misled.
In State of Andhra Pradesh Vs. M. Ramakrishtaiah & Co. and connected case 1994 (93) STC (S.C.) 406, the order of the Deputy Commissioner was passed on 06.01.1973 and it was served upon the assessee on 21.11.1973 with the delay of about 10 and half months. The court held that in the absence of any explanation for the delay, it must be presumed that the order was not made on the date it is purported to have been made but subsequently after the expiry of the limitation period.
The relevant observation of the court is reproduced hereinbelow:-
"There is no explanation from the Deputy Commissioner why it was so delayed. If there had been a proper explanation, it would have been a different matter. But, in the absence of any explanation whatsoever, we must presume that the order was not made on the date it purports to have been made. It could have been made after the expiry of the prescribed four years period."
A similar view was expressed by the Andhra Pradesh High Court in Santosh Builders Vs. Deputy Commissioner of Commercial Taxes (CT) Nellore and others (2013) 57 VST 55 (AP) relying upon the Supreme Court decision in M. Ramakrishtaiah & Co. (Supra) and it was held that where there is a time gap of more than 8 months between the purported date on which the order was passed and the date on which it was served on the assessee and the reason for such inordinate delay remain unexplained it legitimises the presumption that order was not passed on the date on which it is purported to have been passed.
In the said case also the order was passed on 04.11.2006 but was sent to the partners of the assessee firm by registered post on 20.07.2007 and there was no explanation as to what steps were taken during this period to communicate the original order. Thus, the court held that it must be presumed that the order was not passed on the date it is purported to have been passed but was passed beyond the period of limitation prescribed.
The submission of Sri Tripathi that as the dispute regarding back dating of the orders is factual in nature it could be more easily adjudicated in appeal is not of any force.
We are of the opinion that under the admitted facts, there is no dispute regarding facts. The dates of the assessment orders and the date of their service upon the petitioner are clear enough and it is only on account of the long gap between passing of the orders and their services that a legitimate presumption is arising that the orders may not be the orders passed on the purported date but on the subsequent date. This presumption arises on the admitted facts without going into any factual controversy.
The decisions relied upon by Sri Tripathi to convess that since the petitioner has an alternative remedy of filing an appeal the matter ought not to be interfered with in writ jurisdiction are not of much help to him for the reason that the writ petitions were duly entertained after hearing the parties and that the revenue even submitted his defence by filing counter affidavits. In the meantime during the pendency of these petitions, the period of limitation for filing the appeals has also expired which now leaves the petitioner remedy less. Moreover alternate remedy is not an absolute bar but only a rule of procedure which do not prevail over substantive justice. Thus, under the facts and circumstances of the case as there is inordinate delay in the service of the orders which goes completely unexplained coupled with the fact that the officer passing the orders made no efforts to serve them and the orders could be served only after he was transferred necessitates exercise of discretionary jurisdiction.
The law as referred to above clearly clinches the issue regarding legitimate presumption on account of long delay on the part of the revenue in serving the copies of the assessment orders upon the petitioner which ex facie indicate that the orders were actually passed after expiry of limitation and for this reason making it impossible to serve the copies thereof earlier upon the petitioner.
In such circumstances, when the manipulation is lit large and the authorities do not seem to be acting in all fairness rather with the attitude of harassing and victimising the assessee, we do not feel that the court should shy from exercising its extraordinary jurisdiction.
Accordingly, we hold that the assessment orders impugned in each of the writ petitions are of subsequent date rather than of date on which they are purported to have been passed and as such are barred by limitation. Accordingly, they cannot be sustained in law are held to be without jurisdiction.
In the facts and circumstances of the case and what has been revealed from the record produced by Sri C.B. Tripathi, we are of the firm view that the work and conduct of the Officers of the department especially that of the then assessing officer requires strict scrutiny. Therefore, we direct Sri C.B. Tripathi, learned Special Counsel to seal the record available with him i.e. assessment files of the petitioner for the years 2009-10, 2010-11 and 2011-12 and the four registers i.e. two registers (R-5B) regarding hearing proceeding and the two registers (R-30) regarding service of copies of the orders upon the petitioner and to hand over the same to the Commissioner, Commercial Tax U.P., Lucknow for holding an inquiry in the matter so as to fix responsibility for manipulating in the records and for causing inordinate delay in the service of the copies of the orders upon the petitioner.
The Commissioner, on completion of the inquiry, which we expect would be completed within a period of three months, would send a copy of the same in sealed cover to the Registry of the Court for our perusal.
The Registrar General is directed to send the copy of this order directly to the Commissioner, Commercial Tax, Lucknow and a copy to the Principal Secretary, Government of India, Ministry of Finance, Department of Revenue, Central Board Direct Taxes.
The three impugned orders dated 31.03.2016 and one dated 31.01.2017 are quashed and the writ petitions are allowed with costs.
Order Date :- 1.11.2018 piyush