Madhya Pradesh High Court
M/S Shree Sharda Domestic Fuels ... vs The Assistant Commissioner on 8 January, 2013
Author: M.A. Siddiqui
Bench: M.A. Siddiqui
1
HIGH COURT OF MADAHYA PRADESH : AT JABALPUR
W.P.No.15484/2007
M/s Shri Sharda Domestic Fuels Pvt.Ltd.
Vs.
State of M.P. and others.
W.P.No.15421/2007
M/s Shri Sharda Domestic Fuels Pvt.Ltd.
Vs.
State of M.P. and others.
W.P.No.2802/2008
M/s Shri Sharda Domestic Fuels Pvt.Ltd.
Vs.
The Asstt.Commissioner and others.
W.P.No.2810/2008
M/s Shri Sharda Domestic Fuels Pvt.Ltd.
Vs.
The Asstt. Commissioner and others.
W.P.No.2811/08
M/s Shri Sharda Domestic Fuels Pvt.Ltd.
Vs.
Asstt.Commissioner and others.
W.P.No.2823/08
M/s Vandana Fuels Pvt.Ltd.
Vs.
Asstt. Commissioner and others.
W.P.No.2824/08
M/s Vandana Fuels Pvt.Ltd.
Vs.
Asstt.Commissioner and others.
2
W.P.No.2825/08
M/s Vandana Fuels Pvt.Ltd.
Vs.
Asstt. Commissioner and others.
W.P.No.2826/08
M/s Vandana Fuels Pvt.Ltd.
Vs.
Asstt. Commissioner and others.
W.P.No.2827/08
M/s Vandana Fuels Pvt.Ltd.
Vs.
Asstt. Commissioner and others.
W.P.No.2828/08
M/s Vandana Fuels Pvt.Ltd.
Vs.
Asstt. Commissioner and others.
W.P.No.2829/08
M/s Vandana Fuels Pvt.Ltd.
Vs.
Asstt. Commissioner and others.
W.P.No.2830/08
M/s Vandana Fuels Pvt.Ltd.
Vs.
Asstt. Commissioner and others.
W.P.No.4311/08
M/s Sanjay Fuels Donne Market, Jabalpur
Vs.
Asstt. Commissioner and others.
W.P.No.4802/09
3
M/s Gemini Fuels Pvt.Ltd.
Vs.
Asstt. Commissioner and others.
W.P.No.2589/08
M/s Gemini Fuels Pvt.Ltd.
Vs.
Asstt. Commissioner and others.
W.P.No.2593/08
M/s Gemini Fuels Pvt.Ltd.
Vs.
Asstt. Commissioner and others.
W.P.No.2595/08
M/s Gemini Fuels Pvt.Ltd.
Vs.
Asstt. Commissioner and others.
&
W.P.No.4803/09
M/s Gemini Fuels Pvt.Ltd.
Vs.
Asstt. Commissioner and others.
DB: Hon'ble Mr.Justice Krishn Kumar Lahoti &
Hon'ble Mr. Justice M.A. Siddiqui
____________________________________________
Shri G.N. Purohit, Shri L.N.Soni, Senior Adovcates with
Shri S. Nema, Shri Mukesh Agarwal and Shri Abhishek
Oswal, Advocates for petitioner.
Shri Vivek Agarwal, Govt. Advocate with Shri Jaideep
Singh, Deputy Govt. Advocate for respondents.
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Shri N.S. Marawi, Addl. Commissioner, Commercial Tax
is also present .
____________________________________________
ORDER
(Passed On 08.01.2013) AS PER : KRISHN KUMAR LAHOTI,J.
As the controversies involved in the aforesaid matters are identical, we have heard all the matters analogously and propose to dispose of all the matters by this common order.
2. For the convenience facts are taken from WP No. 15484/07 (M/s Shri Sharda Domestic Fuels Pvt. Ltd. vs. The State of M.P. and others). The petitioner, at the relevant period, was manufacturer of coke briquettes. For manufacture of coke briquettes, at the relevant time, there was an exemption to the unit to purchase coal on concessional rates, use it in the manufacturing of coke briquettes and to sell it in the market. The petitioner was manufacturing coke briquettes so it was exempted and was not liable to pay commercial tax, entry tax, etc.on the purchase of coal and on the manufactured item, namely, coke briquettes. Petitioner was assessed for the assessment year 1997-98 and as per the initial assessment order, no tax was found imposed on the petitioner. It appears that a task force of the respondent/Department enquired a complaint and recorded a finding that petitioner and other petitioners were indulged in tax evasion activities, and, infact they were selling coal directly in the market without manufacture of coke briquettes. On the basis of report of task force, assessments of the petitioner/M/s Shri Sharda Domestic Fuels Pvt. Ltd., Katni and others were reopened for various years. On the basis of reopened assessment, Order (Annexure P/4) dated 28.12.02 was passed by which the petitioner was 5 held liable for payment of tax Rs.5,22,750/- and penalty on the said amount.
(a) This Order (Annexure P/4) was subject-matter in revision before the Additional Commissioner, Commercial Tax, Jabalpur in Revision Case No. 262/R/2003/Prantiya and Revision Case No. 255/R/2003/Entry Tax. By a common order in almost all the cases dated 10.05.04, the Addl. Commissioner, Commercial Tax, Jabalpur remanded the matters to the Assessing Officer with certain directions as shown on page 6 and 7 of the order.
(b) The Revisional Authority had found that units of the petitioner were found to be closed on the basis of statement of Sarpanch , while as per inspection notes these units were functional, and on the basis of inspection report, statements of Sarpanch were found without any meaning. The petitioners also produced documentary evidence that they were using generator sets by hiring it and for this purpose, they produced contract agreement before the authority. On the basis of material produced before the Assessing Officer and the Revisional Authority, the Revisional Authority recorded a finding that no proper evidence was collected in respect of the sales for the year 1997-98. The report of the task force was non-
speaking and without any supporting documentary evidence. After three years of the initial assessment order, if the unit is found closed in physical inspection, then on the basis of this, a finding cannot be recorded that before three years the unit was not functional. If the allegations are that the unit had not used the raw material in the manufacturing of coke briquettes and has sold it in the market for tax evasion, then for that purpose, the documentary evidence could have been collected and an opportunity ought to have been extended to the assessee for 6 explanation, and thereafter a speaking order could have been passed by the Assessing Officer. The findings recorded by the Assessing Officer on the basis of report of task force was not on sound reasoning.
(c) In respect of the allegations, the assessee was not extended an opportunity to explain and to prove evidence. During alleged period, Manager DIC, Labour Department, Deputy Collector, Sub-Divisional Officer had inspected the unit and had duly certified that the aforesaid unit was functional. All these documentary evidence were ignored by the Assessing Officer while passing the order. On the basis of aforesaid, the Revisional Authority had found that such reassessment orders cannot be affirmed.
(d) The Revisional Authority also found that for the assessment year 1997-98, the inquiry officer and the tax assessing officer had not collected facts and evidence in respect of the tax evasion. A format was prepared and by the help of computer the assessment order was passed which was not a speaking order. In respect of the allegations against a trader, an opportunity ought to have been extended for explanation and for production of evidence, which was not extended. The explanation submitted by the assessee was not properly considered by the Assessing Officer and ex parte order was passed. On the aforesaid grounds, in the interest of justice, the Revisional Authority had remanded the matter with a direction to extend an opportunity to the assessee before reassessment and for verification of the sales by the Assessing Officer. The Revisional Authority had further found that it was also not verified how many purchasers were found bogus, and in this regard the explanation of the assessee was also not 7 obtained. So far as report of CBI is concerned, it was not filed before the assessing officer and that could not have been the basis for re-assessment. The report of CBI could have been examined by the Assessing Officer and after due examination of the said report along with allegations and evidence, the matter could have been decided. With the aforesaid directions, the matter was remanded to the assessing officer.
3. Before the assessing officer, the assessee was noticed. It appears that on 21.02.05 as per Annexure R/2 to R/6 certain documentary evidence were produced before the assessing officer. The assessing officer, on the basis of aforesaid, directed the assessee (i) to produce evidence in respect of the full name, address and registration number of all the purchasers who had purchased coke briquettes; (ii) the documentary evidence in respect of transportation of goods, including bilty, challan, etc.; (iii) if the payment was made by cheque or draft, then particulars; (iv) any other evidence which the assessee wants to produce. The assessee had sought time to file reply in respect of following queries; (i) the report of task force dated 24.5.2000; (ii) the statement of local Sarpanch ;
(iii) in respect of verification by the Department that most of the purchaser units were not found in existence; (iv) in respect of non-payment of sale price by cheque or draft. The Assessing Officer had also directed the assessee to file reply on the aforesaid points. It appears that case was listed on 14.03.05, 8.8.05, 30.9.05, 24.10.05 and was adjourned for filing of the reply. On 6.1.06, when none had appeared for the assessee, the matter was closed, and on 12.01.06, the Assessing Officer passed an order reiterating the earlier order 8 and same tax and penalty was again imposed upon the petitioner.
4. Against the Order (Annexure P/8) dated 12.01.06, a revision was preferred by the petitioner, but vide Order (Annexure P/11) dated 19.07.06 the revision was dismissed. These orders are under challenge in this writ petition.
5. Learned counsel appearing for petitioners submit; (i) that remand order (Annexure P/5) was not followed by the Assessing Officer, and even at the second time the Revisional Authority while passing Order (P/11) has not considered the fact that earlier remand order (Annexure P/5) was not complied with; (ii) the burden was on the Department to prove that the report of task force was correct, but no opportunity was allowed to the petitioner for cross-examination of the concerned officer who had submitted the report of task force;
(iii) reliance is placed to the judgments of this Court in Metalflex Rubber Works, Indore vs. State of M.P. & Ors. 1995 Vol.14 Tax Law Decisions 126 and Sartaj Boot House vs. Deputy Commissioner of Sales Tax and others (1998) 31 Vikraya Kar Nirnaya 404.
6. Shri Vivek Agarwal, learned GA appearing for State supported the order. It was submitted by him that after the remand, due opportunity was extended to the assessee, but the assessee had failed to prove that infact there were genuine sales of the manufactured items, namely, coke briquettes. It was also submitted that once such an opportunity was allowed to the petitioner after remand, there was full compliance of remand order. Both the authorities have rightly decided the matter against the petitioner. He has referred certain order sheets of the Assessing Officer in respect of extending 9 opportunity to the petitioner for filing reply and for production of material.
7. To appreciate the rival contentions of the parties, we have perused the remand order (Annexure P/5). In the remand order (Annexure P/5), certain specific directions were issued to the Assessing Officer. The Revisional Authority had issued following directions :-
"(i) That, for the assessment year 1997-98 no evidence was collected in respect of non-production by the unit;
(ii) That, merely on the basis of report of task force which is non-speaking, it cannot be decided that the unit was closed before three years of the inspection;
(iii) That, the evidence could have been collected in respect of tax evasion by the unit and on this evidence, an opportunity ought to have been extended to the assessee to rebut the allegations, and thereafter to pass a speaking order;
(iv) That, during the period in which it is alleged that the unit remained closed, the premises were inspected by Manager DIC, Labour Department, Deputy Collector and Sub-Divisional Officer and they had duly certified that unit was functional. These reports were ignored by the Assessing Officer;
(v) That, the Assessing Officer ought to have passed a reasoned order, while on earlier occasion, a format was prepared and by the help of computer and all the assessment orders were passed which were not speaking orders;10
(vi) That, which transactions were found bogus, the Assessing Officer should specify and obtain an explanation from the assessee and thereafter to decide the matter;
(vii) That, the report of CBI was not available on record. The report of CBI could have been treated as a report only, but on the basis of such report, the assessment order could not have been passed."
8. From perusal of the order after the remand (Annexure P/8), it appears that the Assessing Officer on page 5 of the order recorded only one fact that no evidence was produced by the assessee inspite of allowing time to produce the record, and on the basis of this, the Assessing Officer had passed the assessment order reiterating the earlier assessment order. While as per the remand order, the Assessing Officer was required to frame a fresh assessment order after complying the remand order passed by the Revisional Authority, but it appears that mechanically assessment order was passed by the Assessing Officer. The Revisional Authority while deciding the matter by an Order dated 19.07.06 (Annexure P/11) has also not considered that in the earlier remand order (Annexure P/5) various directions were issued for framing a fresh assessment order after remand, which were not duly complied with by the Assessing Officer. It was the duty of the Assessing Officer to look into the remand order and to comply with the said remand order in letter and spirit. When remand order was very specific in respect of certain directions, then those points ought to have been considered by the Assessing Officer even without production of any material by the assessee. The Assessing Officer ought to have recorded a fresh finding that there was 11 tax evasion by the petitioner, on the basis of some material and documentary evidence tax evasion was found proved. But, in the Assessment Order and Revisional Order we do not find any such finding while it was necessary for the Assessing Officer and Revisional Authority to record such findings.
9. From the perusal of the impugned order, we find that after narration of the facts, the Revisional Authority because of non-production of any material before it by the petitioners reiterated the earlier order only, while as per directions issued by the Revisional Authority which are re-produced in para 7 hereinabove, the Assessing Authority was under an obligation to meet out all the aforesaid directions, but it appears that the Assessing Officer impressed with the fact that no evidence was produced before it by the assessee reiterated the earlier order, while it was under an obligation to decide the matter as directed by the Revisional Authority. When the important and vital issues are not considered by the Assessing Officer, the assessment order after remand cannot be sustained under the law. In aforesaid circumstances, matter deserves to be remanded back to the Assessing Officer to pass a fresh order in compliance of remand order (Annexure P/5). ( See Dharampal Satyapal Limited and another vs. State of Bihar and Others (2008) 7 SCC 19, para 6).
10. In aforesaid circumstances, we are left with no option except to remand the matter again to the Assessing Officer to comply with the remand order (Annexure P/5) dated 10.05.04, and to proceed further in accordance with law. Before reassessment, the Assessing Officer shall extend an opportunity to the petitioner to submit its explanation, and for this purpose, a time period of thirty days shall be allowed by the Assessing 12 Officer to the petitioner, and thereafter the Assessing Officer shall be free to frame a fresh assessment order in accordance with law.
11. With the aforesaid directions, these petitions are allowed. The impugned orders are quashed. The matters are remanded to the Assessing Officer. All the petitioners shall appear before the Assessing Officer on 4th of February, 2013 for which date no fresh notice shall be necessary to the parties. Considering the facts of the case, there shall be no orders as to cost.
(Krishn Kumar Lahoti) (M.A.Siddiqui)
Judge. Judge.
Jk.