Jharkhand High Court
Tata Steel Ltd. vs State Of Jharkhand & Ors. on 8 November, 2012
Equivalent citations: AIR 2013 JHARKHAND 96
Author: Prakash Tatia
Bench: Chief Justice, Jaya Roy
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.T No. 645 of 2007
(The Tata Steel Limited Vs. The State of Jharkhand & Ors.)
with
W.P.T. No. 656 of 2007
(The Tata Steel Limited Vs. The State of Jharkhand & Ors.)
with
W.P.T. No. 658 of 2007
(The Tata Steel Limited Vs. The State of Jharkhand & Ors.)
------
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MRS. JUSTICE JAYA ROY
----
For the Petitioner : Mr. M.S. Mittal, Sr. Advocate
Mrs. A.R. Choudhary, Advocate
For the Respondent Nos. 1 to 8 : Dr. S.K.Verma, Sr. S.C.I.
For the Respondent No. 9 : Mr. S.B.Gadodia, Sr. Advocate
Mr. Rakesh Kr. Sahi, Advocate
Reportable ------ Dated 8th November, 2012
These three writ petitions have been preferred to
challenge three different orders passed by the Commercial
Tax Officer, Ramgarh Circle, Ramgarh dated 24.11.2006 by
which Commercial Tax Officer revised the original
assessment orders dated 16.02.2004 in relation to the
three assessment orders which are assessment orders of
1998-99, 1999-2000 and 2000-01.
2. The facts are identical and are not in dispute. The
original assessment orders for the above assessment years
were passed under the Bihar Electricity Duty Act, 1948 and
Bihar Electricity Duty Rules, 1949, as adopted by the State
of Jharkhand, on 16.02.2004 by the Assistant
Commissioner, Commercial Taxes, Hazaribagh Circle,
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copies of which have been placed on record by the writ
petitioner.
3. The petitioner raised several grounds and also
challenged the authority of the State Government to
demand and recover the electricity duty from the petitioner
on various grounds. Those issues have been decided by
Division Bench of this Court in writ petition being W.P.(T)
No. 6163 of 2007 vide judgment dated 11.01.2007 and
following the decision given in said Division Bench
judgment dated 11.01.2007 passed in W.P.(T) No. 6163 of
2007, the petitioner's writ petition being W.P.(T) Nos. 645
of 2007, 656 of 2007 and 658 of 2007 were allowed vide
order dated 14.02.2007, in terms of the aforesaid judgment
dated 11.01.2007.
4. The said judgment dated 11.01.2007 passed in W.P.
(T) No. 6163 of 2007 was challenged before the Hon'ble
Supreme Court in Civil Appeal No. 3450 of 2008 (State of
Jharkhand & Ors. Vs. Atibir Hi-Tech Pvt. Ltd., Giridih and
Anr.) and connected Civil Appeals. Those appeals were
allowed by the Hon'ble Supreme Court vide order dated
30.04.2008and matter was remanded to this Court for deciding various issues. It appears, petitioner was not fully satisfied with relief granted to it, also preferred Civil Appeal before Hon'ble Supreme Court being Civil Appeal No. 3457 of 2008 which was decided separately by the Supreme Court vide order dated 10th April, 2008 and -3- matter was remanded to this Court to decide two issues which we will quote at relevant place
5. After considering various aspects of the matter, the Division Bench of this Court (us) decided those writ petitions in the case of M/s. Anjaney Ferro Alloys Ltd. & ors. Vs. State of Jharkhand & ors. which is reported in 2012(3) JLJR 399. In said decision it has been held that :-
(I) Damodar Valley Corporation was not the licensee under the Bihar Electricity Duty Act, 1948 and Rules of 1949;
(II) The Damodar Valley Corporation was the assessee and covered under the definition of the assessee given in Rule 2 (b) of the Rules of 1949;
(III) The petitioner companies are neither licensees nor assesses but obtained the registration under the Chapter -II of the Bihar Electricity Duty Rules, 1949. Their registration are of no use. They may have obtained the registration under misconception of law or wrong advice but that will not make them the assessee registered under the Rules of 1949;
(IV) The State Government has no right to recover the electricity duty from the writ petitioners who are consumers of the Damodar Valley Corporation and who are obtaining the electricity from DVC for their own use;
(V) The petitioners cannot be subjected to assessment and reassessment for the electricity duty. Therefore, any proceeding of assessment order, reassessment or opening of assessment, which is pending, is quashed. The bills or -4- demand raised by the State Government against these petitioners for electricity duty is also quashed.
(VI) After coming into force of Electricity Act, 2003, the DVC is deemed licensee and because of the Act of 2003, the petitioners' status has not changed to assessee from non-assessee.
(VII) Section 5 of the Jharkhand Electricity Duty (Amendment) Act, 2011 amending Section 4 of the Act of 1948 is declared to be arbitrary as it gives power to the State Government to choose and pick up either of seller or consumer of the electricity for payment of electricity duty and Section 5 of the Act of 2011 amending Section 4 of the Act of 1948 is wholly unworkable and may create chaotic situation, made against the public interest, therefore, declared to be ultra vires and illegal.
6. The above judgment was reviewed vide order dated 21.09.2012 and it has been held that the judgment dated 3rd April, 2012 is reviewed to the extent and the decision given in Clause V of Paragraph-64 of the judgment dated 3rd April, 2012 is declared to be operative prospectively, meaning thereby any proceeding of assessment, reassessment or opening of assessment, which has been initiated after 3rd April, 2012 (if any) for the petitioners, shall stand quashed and the bills or demand raised by the State Government against the petitioner towards the electricity duty after 3rd April, 2012 also stands quashed. The effect of the judgement dated 3rd April, 2012 will be -5- prospective from 3rd April, 2012.
7. In view of the above referred two judgements, the other issue does not survive in these writ petitions. However, in the petitioner's own Civil Appeal No. 3457 of 2008 Hon'ble Supreme Court permitted the petitioner to agitate following two question which are mentioned in the Hon'ble Supreme Court's order dated 30.04.2008 :-
(a) Whether Department was entitled to reopen the completed assessment under the provisions of Bihar Electricity Duty Act, 1948; and
(b) Whether Tata Steel Ltd. (appellant herein) is an assessee under the said 1948 Act.
8. As we have already noticed, the question No. 2 stands answered by above judgement and the review order. Therefore, only question survives for determination before us is whether Department was entitled to reopen the completed assessment under the provisions of Bihar Electricity Duty Act, 1948.
9. Learned counsel for the petitioner submitted that admittedly original assessments were made on 16.02.2004 and thus, assessment orders, if could have been revised, then those could have been revised within a period of one year and beyond that, after obtaining the previous sanction of the Commissioner, recorded in writing in order as per sub-rule 10 of Rule 14(a) of the Bihar Electricity Duty Rules, 1949. It is also submitted that even successor in -6- office who has passed the order was not competent to revise the assessment order without the previous sanction of the Commissioner as per sub-rule 11 of Rule 14 of Rules of 1949 whereas in these cases lower authority has revised or reviewed the assessment orders of superior authority. It is also submitted that the respondents, in reply, have submitted that the orders under challenge dated 24.11.2006 in all three writ petitions are the orders of review. It is submitted that Rule 14 provides that who can be the authority who can review or revise the order and in view of the various Clauses under sub-rule 4 of Rule 14, the orders of assessment passed in the cases of the assessee could not have been reviewed or revised by an authority below the rank of the authority who has passed the original orders. As per sub-Section 4 of Section 9(A) of the Bihar Electricity Duty Act, 1948 also, any order of review can be passed only by the authority or his successor in the office but not any authority below the rank of the officer who has passed the original order.
10. In substance, learned counsel for the petitioner submitted that firstly, the review orders have been passed by the authority having no jurisdiction and who was not competent to review the orders of original assessment and secondly, the review orders have been passed beyond the period of 12 months which could have been passed only by a competent authority after obtaining the previous sanction -7- of the Commissioner in writing which also has not been obtained. Therefore, review orders are wholly without jurisdiction and deserve to the set aside.
11. Learned counsel for the State submitted that it is a case of escapement of the electricity duty and, therefore, the impugned orders have been passed. It is also submitted that there was audit objection and since there was a total wrong application of the component of levy of tax, therefore, it has been corrected by the impugned orders.
12. Learned counsel for the State could not show us any of the provision whereunder otherwise than review or revision of the order, the orders could have been modified. There is no provision where the authority could have exercised jurisdiction review or revise the assessment order on the ground of any escapement of the duty and further, that could have been done by an authority below the rank of the officer who has passed the original assessment order.
13. The order-sheets, copies of which have been placed on record as page 57 of the writ petition No. 645 of 2007 as Annexure-8/1, discloses that original assessment proceedings were initiated vide order dated 31.12.2003 and were completed vide order dated 16.02.2004 by passing the assessment orders. These assessment orders were passed in all the three cases by the Assistant Commissioner, Commercial Taxes. In the same page of the -8- order-sheet, on 18.07.2006 it has been mentioned that there is audit objection and to meet with the audit objection, a notice be given to the assessee. Under this order-sheet, there is a mention of the authority Deputy Commissioner but it was scored out and then it was signed by Commercial Tax Officer. He proceeded further and passed the revised assessment orders dated 24.11.2006. Therefore, it is clear that original assessment orders were passed by the Assistant Commissioner, Commercial Taxes and those have been revised by an officer below in hierarchy i.e. Commercial Tax Officer. If these were the orders of review, then it could have been passed only by the authority who has passed the orders. As per sub-section 4 of Section 9(A) of the Act of 1948, if it is an order of revision of original order then as per sub-rule 4 of Rule 14 of the Rules of 1949 framed under the Act of 1948, the original order of the Assistant Commissioner could have been revised by the Deputy Commissioner. The order passed by the Deputy Commissioner could have been revised by the Joint Commissioner and order the Joint Commissioner could have been revised by the Commissioner and the order passed by the Commissioner could have been revised by the Tribunal. Therefore, the revisional order also could not have been passed by a lower authority as has been done in this case. In the orders impugned dated 24.11.2006 it has been mentioned that these are the revised assessment orders, therefore, in view -9- of sub-rule 4 of Rule 14 also, the orders have been passed by an authority who had no jurisdiction to pass revised assessment orders. Therefore, on this count, the orders under challenge are wholly without jurisdiction.
14. The orders have been passed beyond the period of 12 months from the date of original order and no material has been placed on record by the revenue that before passing the revised assessment order any previous sanction of the Commissioner has been obtained much less to in writing. Therefore, the reassessment order or revised assessment order passed beyond the period of limitation, deserve to be set aside.
15. In view of the above reasons, the revised assessment orders passed for the year 1998-99, 1999-2000 and 2000-01 dated 24.11.2006 are set aside and quashed. The petitioner in the present writ petition sought relief of refund of surcharge amount from the D.V.C. and, therefore, D.V.C. was made party in that writ petition. Learned counsel for the petitioner submits that petitioner is now not pressing that point at present and, therefore, writ petitions are allowed to the extent and the orders dated 24.11.2006 are set aside.
No order as to cost.
(Prakash Tatia, C.J.) (Jaya Roy, J) Birendra/