Chattisgarh High Court
State Of Chhattisgarh vs M/S Bgr Mining And Infra Limited on 1 September, 2023
Neutral Citation
2023:CGHC:22201-DB
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved for judgment on 23.08.2023
Pronouncement for judgment on 01.09.2023
WA No.164 of 2023
1. State Of Chhattisgarh Through The Secretary, Department Of
Commercial Tax-Gst, Mahanadi Bhawan, Mantralya, Atal Nagar, Naya
Raipur, District : Raipur, Chhattisgarh
2. Joint Commissioner State Tax Bilaspur Division No. 2 P.O. And P.S.
Bilaspur, Bilaspur
3. Deputy Commissioner Of State Tax, Bilaspur Division No. 2, P.O. And
P.S. Bilaspur Bilaspur
4. Assistant Commissioner Of, Commercial Tax, Korba Division, Korba
District Korba, Chhattisgarh.
5. Commercial Tax Officer, (Commercial Tax Circle -2) Korba Division,
Korba
---- Appellants
Versus
M/s Bgr Mining And Infra Limited, A Company Registered Under The
Companies Act, 1956, Having Its Office At 8-2-596/r Road No. 10,
Bajara Hills, Hyadrabad-500034 (Telangana), And Its Office In The
Chhattisgarh At 598/6, S.S Plaza, P.H. Road, Korba P. O. And P.S.
Korba, District : Korba, Chhattisgarh
---- Respondent
WA No. 121 of 2023
1. State Of Chhattisgarh Through Joint Commissioner, State Tax Bilaspur
Division - I I, Commercial Tax - G S T Department, North Block, Sector
- 19, Atal Nagar, Naya Raipur Chhattisgarh
2. Deputy Commissioner Commercial Tax, Bilaspur Division - I I,
Commercial Tax - G S T Department, North Block, Sector - 19, Atal
Nagar, Naya Raipur, Chhattisgarh
3. Commercial Tax Officer Raigarh Circle, Circle - I I, Korba, Commercial
Tax G S T Department, North Block, Sector - 19, Atal Nagar, Naya
Raipur, Chhattiagarh
4. Commerical Tax Officer Raigarh Circle - I, Commercial Tax G S T
Neutral Citation
2023:CGHC:22201-DB
2
Department, North Block, Sector - 19, Atal Nagar, Naya Raipur,
Chhattisgarh
5. Assistant Commissioner Circle - I, Raigarh Commercial Tax G S T
Department, North Block, Sector - 19, Atal Nagar, Naya Raipur
Chhattisgarh
---- Appellants
Versus
M/s Sunil Kumar Agrawal Through Its Proprietor Sunil Kumar Agrawal
S/o Shri Radheshyam Agrawal, A/a 50 Years, Seva Kunj Road, Near
Girls College, Raigarh, Chhattisgarh
---- Respondent
WA No. 160 of 2023
1. State Of Chhattisgarh Through Principal Secretary, Department Of
Commerical Tax-Gst Mahanadi Bhawan, Mantralaya, Atal Nagar, Naya
Raipur, District Raipur Chhattisgarh
2. Divisional Deputy Commissioner, Commercial Tax, Bilaspur Division -
Ii, Commercial Tax - Gst Department, Ambey Plaza Tifra,bilaspur,
District Bilaspur Chhattisgarh
3. Joint Commissioner State Tax Bilaspur Division -Ii, Commercial Tax,
Bilaspur Division -Ii, Commercial Tax - Gst Department, Ambey Plaza
Tifra,bilaspur, District Bilaspur Chhattisgarh
4. Commercial Tax Officer, Commercial Tax Korba, Circle -Ii. Commercial
Tax - Gst Department, Collectorate Campus, Korba District Korba,
Chhattisgarh
5. Assistant Commissioner, Commercial Tax, Bilaspur Division -Ii,
Commercial Tax - Gst Department, Ambey Plaza Tifra,bilaspur, District
Bilaspur Chhattisgarh
6. Commissioner, Department Of Commerical Tax-Gst Mahanadi
Bhawan, Mantralaya, Atal Nagar, Naya Raipur, District Raipur
Chhattisgarh
---- Appellants
Versus
M/s Narayani Sons Private Limited Limited 209, Ajc Bose Road,
Kamani Estate, 4th Floor, Room No. 166, Kolkata - 700017, Cin -
U51900wb2005ptc102304. Through Its Authorized Signatory Shri
Chakradhar Mohanty, Project Manager, S/o. Shri Banshidhar Mohanty,
Aged About 37 Years, R/o. Kharmora, Dadarkhurd. Ward No. 23,
Neutral Citation
2023:CGHC:22201-DB
3
House No 97/07, Korba Chhattisgarh - 495682.
---- Respondent
WA No. 162 of 2023
1. State Of Chhattisgarh Through Principal Secretary, Department Of
Commercial Tax-G S T, Mahanadi Bhawan, Mantralaya, Atal Nagar,
Naya Raipur, District Raipur Chhattisgarh
2. Divisional Deputy Commissioner Commercial Tax, Bilaspur Division I I,
Commercial Tax-G S T Department, Ambey Plaza, Tifra, Bilaspur,
District Bilaspur Chhattisgarh
3. Joint Commissioner State Tax Bilaspur Division I I, Commercial Tax-G
S T Department, Ambey Plaza, Tifra, Bilaspur, District Bilaspur
Chhattisgarh
4. Commercial Tax Officer Commercial Tax Korba, Circle-I I, Commercial
Tax-G S T Department, Collectorate Campus, Korba District Korba,
Chhattisgarh
5. Assistant Commissioner Commercial Tax, Bilaspur Division I I,
Commercial Tax-G S T Department, Ambey Plaza, Tifra, Bilaspur,
District Bilaspur Chhattisgarh
6. Commissioner Commercial Tax Department, Department Of
Commercial Tax-G S T, Mahanadi Bhawan, Mantralaya, Atal Nagar,
Naya Raipur, District Raipur Chhattisgarh
---- Appellants
Versus
M/s Chennai Radha Engineering Works Pvt. Ltd. A Company Duly
Registered Under The Provision Of The Company Act, 1956, Having
Its Registered Office At 209, A J C Bose Road, Kamani Estate, 4th
Floor, Room No. 166, Kolkata-700017 Through Its Authorized
Signatory Vimal Azhagesan, General Manager, S/o Late Shri A
Venkatesan, Aged About 59 Years, R/o 2/123 A Rajaji Street,
Shrinivasapuram, Mayiladuthurai And Post And Tehsil, District
Nagapattinam, Tamilnadu- 609001
---- Respondent
WA No. 165 of 2023
1. State Of Chhattisgarh Through The Secretary, Department Of
Commercial Tax-Gst, Mahanadi Bhawan, Mantralaya, Atal Nagar,
Naya Raipur, District Raipur (Chhattisgarh)
2. Joint Commissioner State Tax Bilaspur Division No. 2, P.O. And P.S.
Neutral Citation
2023:CGHC:22201-DB
4
Bilaspur, Bilaspur, District Bilaspur (Chhattisgarh)
3. Deputy Commissioner Of State Tax Bilaspur Division No. 2, P.O. And
P.S. Bilaspur, Bilaspur, District Bilaspur (Chhattisgarh)
4. Assistant Commissioner Of Commercial Tax Korba Divison, Korba,
District Korba (Chhattisgarh)
5. Commercial Tax Officer (Commercial Tax Circle-2), Korba Division,
Korba, District Korba, Chhattisgarh.
---- Appellants
Versus
M/s Bgr Mining And Infra Limited A Company Registered Under The
Companies Act, 1956, Having Its Office At 8-2-596/r Road No. 10,
Bajara Hills, Hydrabad-500034 (Telangana) And Its Office In The
Chhattisgarh At 594/6, S.S. Plaza, P.H. Road, Korba, P.O. And P.S.
Korba, District Korba (Chhattisgarh)
---- Respondent
WA No.166 of 2023
1. State Of Chhattisgarh Through Joint Commissioner, State Tax Bilaspur
Division - I I, Commercial Tax- G.S.T. Department, North Block,
Sector- 19, Atal Nagar, Naya Raipur, Chhattisgarh.
2. Divisional Deputy Commissioner Commercial Tax Bilaspur Division - I
I, Commercial Tax- G.S.T. Department, Ambeplaza, Tifra, Bilaspur,
District - Bilaspur, Chhattisgarh.
3. Joint Commissioner State Tax Bilaspur Division-I I, Commercial Tax -
G.S.T. Department, Ambe Plaza, Tifra, Bilaspur, District - Bilaspur,
Chhattisgarh.
4. Assistant Commissioner Korba, Commercial Tax- G.S.T. Department,
Collectorate Campus, Korba, District - Korba, Chhattisgarh.
5. Commercial Tax Officer Korba Circle - I Of Commercial Tax- G.S.T.
Department, Korba Collectorate Campus, Korba, District - Korba,
Chhattisgarh.
---- Appellants
Versus
Dee Cee Coal Carries Pvt. Ltd. Through Its Director Jonmenjoy Moyra
S/o Shri Govind Mohan Moyra A/a 50 Years, P. Ravishankar Shukla
Nagar, Korba, Chhattisgarh.
Neutral Citation
2023:CGHC:22201-DB
5
---- Respondent
WA No. 193 of 2023
1. State Of Chhattisgarh Through Joint Commissioner, State Tax Bilaspur
Division - I I, Commercial Tax - G S T, Department, North Block,
Sector - 19, Atal Nagar, Naya Raipur Chhattisgarh
2. Divisional Deputy Commissioner Commercial Tax, Bilaspur Division - I
I, Commercial Tax - G S T Department, Ambe Plaza, Tifra, Bilaspur
District - Bilaspur Chhattisgarh
3. Joint Commissioner State Tax Bilaspur Division - I I, Commercial Tax -
G S T Department, Ambe Plaza, Tifra Bilaspur District Bilaspur
Chhattisgarh.
4. Assistant Commissioner Korba, Commercial Tax G S T Department
Collectorate Campus, Korba, District Korba Chhattisgarh.
5. Commercial Tax Officer Korba Circle - I Of Commercial Tax G S T
Department, Korba Collectorate Campus Korba District Korba
Chhattisgarh.
---- Appellants
Versus
Dee Cee Coal Carriers Pvt. Ltd. Through Its Director Jonmenjoy Moyra
S/o Shri Govind Mohan Moyra A/a 50 Years, P. Ravishankar Shukla
Nagar, Korba Chhattisgarh
---- Respondent
WA No. 194 of 2023
1. State Of Chhattisgarh Through The Principal Secretary, Department Of
Commercial Tax- Gst, Mahanadi Bhawan, Mantralaya, Atal Nagar,
Naya Raipur, District Raipur Chhattisgarh
2. Divisional Deputy Commissioner Commercial Tax, Bilaspur Division
Department, Ambey Plaza, Tifra, Bilaspur District Bilaspur
Chhattisgarh
3. Joint Commissioner State Tax Bilaspur Division Ii, Commercial Tax G
S T, Department, Ambey Plaza, Tifra, Bilaspur District Bilaspur
Chhattisgarh
4. Commercial Tax Officer Commercial Tax Korba, Circle Ii, Commercial
Tax G S T, Department, Collectorate Campus, Korba District Korba
Chhattisgarh
5. Assistant Commissioner Commercial Tax, Bilaspur Division Ii,
Neutral Citation
2023:CGHC:22201-DB
6
Commercial Tax G S T, Department, Ambey Plaza, Tifra, Bilaspur
District Bilaspur Chhattisgarh
6. Commissioner Commercial Tax Department, Department Of
Commercial Tax G S T, Mahanadi Bhawan, Mantralaya, Atal Nagar,
Naya Raipur, District Raipur Chhattisgarh
---- Appellants
Versus
M/s Narayani Sons Private Limited 209, Ajc Bose Road, Kamani
Estate, 4th Floor, Room No. 166, Kolkata- 7000017, Cin-
U51900wb2005ptc102304 Through Its Authorized Signatory Shri
Chakradhar Mohanty, Project Manager, S/o Shri Banshidhar Mohanty,
Aged About 35 Years, R/o Kharmora, Dadarkhurd, Ward No. 23,
House No. 97/07, Korba, Chhattisgarh- 495682, District - Korba,
Chhattisgarh
---- Respondent
(Cause title is taken from CIS)
Present:-
Shri Vikram Sharma, Dy.GA for the appellant/State.
Shri Sumeet Gadodia, Shri K. Rohan and Shri Ranjeet Kushwaha,
Advocates for respondents in W.A.Nos.164 & 165 of 2023.
Shri Anand Dadariya, Advocate for respondent in W.A.Nos.162, 166
and 193 of 2023.
Shri Ramit Mehta, Advocate (through Video Conferencing), Shri
Anumeh Shrivastava and Shri Akash Shrivastava, Advocates for
respondent in W.A.No.121 of 2023.
Shri Neelabh Dubey and Ms. Smiti Sharma, Advocates for respondent
in W.A.No.160 & 194 of 2023.
D.B.: Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Shri Justice Sanjay S. Agrawal
CAV Order
Per Sanjay S. Agrawal, J.
1. Since all these appeals preferred by the State Government against the common order dated 18.10.2022 passed by the learned Single Judge in bunch of writ petitions, i.e. W.P.(T)Nos.99 of 2020, Neutral Citation 2023:CGHC:22201-DB 7 W.P.(T)No.1 of 2021, W.P.(T)No.2 of 2021, W.P.(T)No.103 of 2020, W.P.(T)No.106 of 2020, W.P.(T)No.110 of 2020, W.P.(T)No.111 of 2020, W.P.(T)No.112 of 2020), involved common question of law, they are being disposed of by this common order.
2.1 Briefly stated the facts of the case as projected in petition, being W.P.(T)No.99 of 2000 (M/s Sunil Kumar Agrawal vs. State of C.G. and others), are that the petitioner-M/s Sunil Kumar Agrawal, a proprietorship firm was duly registered under the Central Sales Tax Act, 1956 (hereinafter referred to as "the Act of 1956") and the Chhattisgarh Value Added Tax Act, 2005 (hereinafter referred to as "the Act of 2005") involved in the business of undertaking works contract for deploying Heavy Earth Movers Machinery for execution for tasks/activities, like overburden extraction and removal in mining, construction of roads, bridges, canals, river channels etc. and, for the said work, tender was invited by the South Eastern Coalfields Limited (In short "the SECL") and being a successful bidder, the said work was awarded to the petitioner. After obtaining the said work, the petitioner approached the respondent No.4-Commercial Tax Officer, Circle-II, Raigarh for amending "C Form", which was issued under the said Acts and on the basis of the petitioner's application, "C Form" certificates were amended while entering "mining and high speed diesel (HSD)" therein and the certificates to this effect were accordingly issued and thereafter, the petitioner started purchasing inter-state HSD at commercial rate of tax.
Neutral Citation 2023:CGHC:22201-DB 8 2.2 According to the petitioner, the respondent-department in exercise of the powers enumerated under Section 49 (1) of the Act of 2005 issued a notice calling upon the petitioners to explain as to why the entry made in the said registration certificate be not deleted. It is the contention of the petitioner that the Joint Commissioner, State Tax, Bilaspur, Division-II, Bilaspur, who issued the alleged notice was not the competent authority for the said purpose.
2.3 Further contention of the petitioner is that for correction of the alleged notice, the alleged amended notice was issued, but, since no new dispatch number was mentioned therein, therefore, it cannot be said that the alleged notice issued on 01.10.2020, was duly corrected and/or the same could be held to be issued to that of under sub section(3) of Section 49 of the Act of 2005. It is contended further that even if it is presumed that the alleged notice was issued under sub section (3) of Section 49 of the Act of 2005, then also, the order impugned deleting the words "mining and high speed diesel (HSD)"
from the registration certificates cannot be held to be sustainable in view of the mandate provided therein as it was passed without providing any sufficient and reasonable opportunity of hearings. 2.4 It is pleaded further that in response to the aforesaid notice, the petitioner has submitted its reply, but the respondent No.2-Deputy Divisional Commissioner, Commercial Tax, Bilaspur, Division No.2 has passed the order impugned dated 14.10.2020, whereby the entry made in the said registration certificates regarding "mining and high speed Neutral Citation 2023:CGHC:22201-DB 9 diesel (HSD)" has directed to be deleted with effect from 05.02.2020 and consequent upon that, the respondent No.4 has passed the order on 29.10.2020 (Annexure P/19) for recovery of tax with penalty of Rs.1,96,08,045/- under Section 10-a of the Act of 1956, which compelled the petitioner for institution of the petition for quashment of the alleged notice as well as the order impugned passed in consequent upon that by submitting, inter alia, that no order as such could be passed in prejudicial to the interest of the dealer or the person in exercise of the powers under Section 49(1) of the Act of 2005, as the same could be passed only under sub section(3) of Section 49 of the Act of 2005 and that too after providing sufficient and reasonable opportunity of hearings to the dealer or the person concerned and since the order impugned deleting the words "mining and high speed diesel (HSD)" from the registration certificates of the petitioner has been passed without issuance of the notice under sub-section(3) of Section 49 of the Act of 2005, therefore, it deserves to be set aside for violation of the principles of natural justice. It is contended further that the amended notice (Annexure R/3) as submitted by the respondent-
department in its return/reply while mentioning the word "3" in place of "1" and by incorporating "Deputy Commissioner" at the bottom of it, is nothing but an interpolated one and, therefore, the entire proceedings cannot be termed to be initiated under sub-section (3) of Section 49 of the Act of 2005.
2.5. While referring to the Rule 61 of the Chhattisgarh Value Added Neutral Citation 2023:CGHC:22201-DB 10 Rules, 2006 (hereinafter referred to as "the Rules of 2006"), it is pleaded further that the alleged notice was required to be issued in Form-55, whereas no notice as such was issued in the said prescribed proforma, therefore, the alleged notice cannot be said to be a valid one nor the order impugned passed thereupon can be held to be a valid one.
2.6 Further contention of the petitioner is that the HSD is being used for the mining activities, however, the respondent-department mis-understood the nature of work provided in the Work Order issued by the SECL, as the removal of strata and overburden are its integral part and would fall within the category of "mining activities", therefore, neither the alleged notice could be issued under the Act of 2005 nor the order impugned in pursuance thereof could be passed as such. 2.7. It is the further contention of the petitioner that the respondent- department while mis-interpreting the provision prescribed under Section 8(3)(b) of the Act of 1956 has passed the order impugned based upon the alleged improper notice, therefore, issuance of the subsequent proceedings based upon it for recovery of the tax and penalty under Section 10-a of the Act of 1956 is nonest in the eye of law and deserves to be quashed.
3. While contesting the aforesaid claim, it was pleaded by the respondent-department that the petition as framed without availing the alternative statutory remedy for questioning the order impugned as prescribed under sub-section(4) of Section 49 of the Act of 2005 is not Neutral Citation 2023:CGHC:22201-DB 11 maintainable and deserves to be dismissed on this ground alone. It was contested further on the ground that the defect in issuing the notice under sub-section (1) of Section 49 of the Act of 2005 instead of sub- section (3) was corrected on the same day by issuing an amended notice while mentioning sub-section(3) therein in place of sub-section(1) and that by incorporating "Deputy Commissioner" at the bottom of it, therefore, it cannot be said to be an improper notice, particularly when the petitioner was fully aware with regard to the intention of the respondent-defendant behind the issuance of the alleged notice. It is contended further that by virtue of issuance of notification dated 14.07.2017, it cannot be said to be issued by an unauthorized authority, particularly when the reply was submitted by the petitioners in response to the alleged notice without raising the grounds as alleged herein. It was contended further that the alleged notice was not required to be issued in Form-55 as it was issued only for amending the registration certificates of the petitioners and not for enhancing the assessment and penalty. The petition as framed is, therefore, liable to be dismissed.
4. The learned Single Judge after considering the contention of the parties based upon the aforesaid pleadings arrived at a conclusion that since the alleged "amended notice" does not contain the new dispatch number, therefore, it cannot be said that the alleged notice was issued under sub-section(3) of Section 49 of the Act of 2005 and, in consequence, the order impugned passed in pursuance thereof has been declared to be as null and void.
Neutral Citation 2023:CGHC:22201-DB 12
5. Being aggrieved, the respondent-department has preferred these appeals.
6. Mr. Vikram Sharma, learned counsel appearing for the respondent-department submits that the finding of the learned Single Judge holding that the order impugned deleting the words "mining and high speed diesel (HSD)" from the registration certificates of the petitioners has been passed without the issuance of notice under sub section(3) of Section 49 of the Act of 2005, is apparently contrary to law. It is contended further that while issuing the statutory notice for initiation of the proceedings under the Act of 2005, a clerical mistake was revealed to be deducted by mentioning sub-section(1) of the said provision instead of sub-section(3), and, therefore, for its rectification, the alleged "amended notice" was issued by mentioning the "Deputy Commissioner" at its bottom. It is contended further while referring to the reply filed by the petitioners to the alleged show cause notice that they were, in fact, fully aware with regard to the initiation of the alleged proceedings and therefore, after passing of the order impugned deleting the words "mining and high speed diesel (HSD)" from their registration certificates, the authenticity of the alleged notice cannot be questioned by them as they are not only precluded, but are stopped from saying so. In support, he placed his reliance upon the decision rendered by the Supreme Court in the matter of Commissioner of Sales Tax and others vs. Subhash & Co., reported in (2003)3 SCC 454.
7. On the other hand, learned counsel appearing for the petitioners, Neutral Citation 2023:CGHC:22201-DB 13 while supporting the common impugned order passed by the learned Single Judge, submits that since the order impugned deleting the words "mining and high speed diesel (HSD)" from their registration certificates has been passed without the issuance of proper notice as required under sub section(3) of Section 49 of the Act of 2005, therefore, the finding of the learned Single Judge is well merited and does not required to be interfered.
8. We have heard learned counsel appearing for the parties and perused the entire record.
9. The only question, which arises for determination in these appeals is as to "whether finding of the learned Single Judge holding that the order impugned deleting the words "mining and high speed diesel (HSD)" from the registration certificates of the petitioners issued under the Act of 2005 and the Act of 1956 has been passed by the respondent-department without the issuance of notice under sub-section(3) of Section 49 of the Act of 2005 is sustainable in the eye of law or not ?
10. For determining the aforesaid question, it would be appropriate to examine the provisions prescribed under Section 49 of the Act of 2005, which provides as under:-
49. Power of revision by Commissioner---(1) The Commissioner ------
(I) In respect of any order passed by any officer specified in clauses (b) to (f) of sub-section(1) of Section 3, may on his own motion ; or
(ii) In respect of any order passed by any officer specified in clauses
(d) to (f) of sub-section(1) of Section 3, on an application by a Neutral Citation 2023:CGHC:22201-DB 14 dealer or person made within the prescribed period from the date of order, shall;
call for the record of the proceeding in which such order was passed and on receipt of the record may make such enquiry or cause such enquiry to be made, as he considers necessary and subject to the provisions of this Act may, pass such order thereon, not being an order prejudicial to the dealer or person as he thinks fit (within one calendar year from the date of filing such application for revision):-
Provided that-
(a) the Commissioner shall not revise any order under this sub section, where an appeal against the order is pending before the Appellate Deputy Commissioner or the {Tribunal} or where, if such appeal lies, the time within which it may be filed has not expired;
(b) no revision shall lie---
(i) against an order determining the liability of a dealer to pay tax or against a notice issued under this Act for assessment except after an assessment order is passed; and
(ii) against an order passed under Section 36.
Explanation :- An order by the Commissioner, declining interference shall not be deemed to be an order prejudicial to the dealer or person. [1-A Notwithstanding anything contained in sub-section (1), if the revision under sub-section(1) is in respect of an order of re- assessment or re-imposition of penalty in pursuance of any direction given in appeal or revision, the Commissioner may pass an order in accordance with the provisions of sub-section (1), but shall not remand the case] (2). The Commissioner may on his own motion call for the record of any proceeding in which any order under sub-section(1) has been passed by an officer to whom the Commissioner has delegated his powers under this section in pursuance of the provisions of Section 43 and on receipt of the record, may make such enquiry or cause such enquiry to be made as he considers necessary and subject to the other provisions of this Act, may pass such order thereon not being an order prejudicial to the dealer or person as he thinks fit. (3). The Commissioner may on his own motion or on information received call for and examine the record of any proceeding under this Act if he considers that any order passed therein by any person appointed under Section 3 to assist him including any officer to whom he has delegated his powers under sub-section(1) is erroneous in so far as it is prejudicial to the interest of the revenue, and he may, after giving the dealer or person a reasonable opportunity of being heard, Neutral Citation 2023:CGHC:22201-DB 15 and after making or causing to be made such enquiry as he deems necessary, pass within one calendar year from the date of initiation of proceeding such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment or canceling the assessment and directing a fresh assessment:
Provided that ----
(a) no proceeding shall be initiated under this sub-section after the expiry of three calendar years from the date of the order sought to be revised;
(b) no order shall be revised by the Commissioner under this sub-
section where a second appeal against such order is pending before the Tribunal or such appeal has been decided by the [Tribunal] on merits.
(4). Any dealer or person objecting to an order passed by the Commissioner under sub-section(3)may appeal to the [Tribunal] within sixty days of the date on which the order is communicated to him.
(5). The provision of sub-sections (4), (5) and (6) of Section 48 shall mutatis mutandis, apply to appeals filed under sub-section(4). (6) Where the Commissioner considers that any order passed under sub-section (1) by his predecessor or any Additional Commissioner of Sales Tax in so far as it is prejudicial to the interests of revenue, he may file an appeal against such order before [Tribunal] within two years from the date of such order. The provisions of Section 48 shall mutatis mutandis apply to the appeals filed under this sub-section. (7) Notwithstanding anything contained in sub-section(1), but subject to such restrictions and conditions as may be prescribed, where on an application made by a dealer, the State Government is of the opinion that hardship is being caused to such dealer due to any order passed under any of the provisions of this Act other than an order under Section 25 or an order passed in pursuance or in consequence of an order by the Tribunal or the Civil Court, High Court or Supreme Court, the State Government may direct the Commissioner to initiate proceedings under sub-section (1) in respect of such order and on such direction the Commissioner shall dispose of such proceeding according to law as if the proceedings had been initiated by him under clause (ii) of sub-section(1):-
Provided that no such direction shall be given unless---
(a) the dealer has exhausted the remedies available to him under Section 36, Section 48, sub-section(1) of this section or Section 56, as the case may be, or the period within which any remedy under the aforesaid provisions can be sought has expired, and/or Neutral Citation 2023:CGHC:22201-DB 16
(b) his application for revision under sub-section(1) has been rejected on merit:
Provided further that such an application shall be entertained by the State Government only once.]
11. A bare perusal of sub section(1) of the aforesaid provision, particularly the words "not being an order prejudicial to the dealer or person as he thinks fit" occurring therein would show that no order prejudicial to the interest of the dealer or person as he thinks fit can be passed. It, thus, appears that for issuance of notice to the dealer or the person, is not the requirement for invoking the provision prescribed therein, while issuance of notice to the dealer or a person, is a condition precedent for initiation of the proceedings under sub-section (3) of the said provision, as according to it, if the Commissioner considers that if any of the person appointed under Section 3 of the Act of 2005 assisting him including any officer to whom he has delegated his powers under sub-section(1), passed the order, which is erroneous in so far as it is prejudicial to the interest of the revenue, then the issuance of notice to the dealer or a person in order to provide them sufficient and reasonable opportunity of hearing is a sine qua non before passing any order under this provision. Meaning thereby, no order prejudicial to the interest of the dealer or a person can be passed under sub-
section(1) of Section 49 of the Act of 2005 and that was the reason why the legislature has not provided for issuance of notice to them, but, issuance of notice to them is, however, made mandatory, if action is Neutral Citation 2023:CGHC:22201-DB 17 needed to be taken as per the requirement of sub-section (3) of it.
12. What is, therefore, reflected from the close scrutiny of the aforesaid sub-sections(1) and (3) of Section 49 of the Act of 2005 that there is no requirement for issuance of notice to the dealer or the person, if the order is required to be passed under sub-section(1) of Section 49 of the Act, but, issuance of notice to them is, however, a condition precedent before invoking the provisions prescribed under sub-section (3) of the said provision.
13. While keeping the object for enactment of the aforesaid provision, as observed hereinabove, it is now necessary to examine the "notices" dated 01.10.2020, vis-a-vis the "amended notice" issued by the respondent-department for issuance of the alleged proceedings for amendment of the registration certificates issued to the petitioners and, the "reply" as filed by them which read as its verbatim as under :-
Notices issued by the respondent-department (1) dk;kZy; la;qDr vk;qDr jkT; dj fcykliqj laHkkx dzekad &nks dz-@la-vk-@jk-dj@th,lVh@2020@1105 fcykliqj fnukad 01-10-2020 izfr] fuxjkuh iz-dz- 154@vk-lh-&1@2020 ¼dsUnzh;½ esllZ lquhy dqekj vxzoky] fu;j xYlZ dkWyst jk;x<+ ¼N0x0½ fVu & 22274902941 fo"k; %& dsUnzh; fodz; dj vf/kfu;e dh /kkjk 9¼2½ rFkk lgifBr ewY; laof/kZRk dj vf/kfu;e dh /kkjk 49¼1½ ds rgr lh&QkeZ dk nq:i;ksx fd;s tkus ds dkj.k dsaUnzh; iath;u izek.k i= ls ekbZfuax xfrfof/k ,oa gkbZ LihM Mhty dk foyksiu Neutral Citation 2023:CGHC:22201-DB 18 fd;s tkus rFkk iath;u izek.k i= esa la'kks/ku gsrq lwpuk i=A &000& izdj.k ds voyksdu esa ;g ik;k x;k gS fd okf.kfT;d dj vf/kdkjh ds }kjk ekbZfuax vksoj cMZu dks =qfViw.kZ ekbZfuax ekuk tkdj vkids izkarh; ,oa dsUnzh; iath;u izek.k i= esa mR[kUu dk;Z gsrq ekbZfuax e'khujh ds fy, ,p,lMh ntZ fd;k x;k gS] tks fd izFke n`"V;k =qfViw.kZ gSA vr% okf.kfT;d dj vf/kdkjh ds vkns'[email protected]; ds fo:) izdj.k ewY; lafof/kZr dj vf/kfu;e dh /kkjk 49¼1½ ds rgr Loizsj.kk ls fuxjkuh esa fy;k tkdj vkidks lqfpr fd;k tkrk gS fd vki ,sls leLr rF;] lk{; ,oa vU; nLrkost ftuls ;g izekf.kr fd;k tk lds fd vkids }kjk ekbZfuax dk dk;Z tkrk gSA fnukWd 03-10-2020 'kke 5%30 rd bZ&esy ds ek/;e ls vFkok lacaf/kr dk;Zy; okf.kfT;d dj esa izLrqr dj ldrs gS] lkFk gh ;fn vkids }kjk ekbZfuax dk dk;Z fd;k tkrk gS ,oa jk;YVh tek dh tkrh gS vFkok [kfut foHkkx esa fooj.kh izLrqr dh tkrh gS] rks bldk Hkh lk/; fu/kkZfjr le; esa izLRkqr djsa] vU;Fkk D;ksa u vkids iath;u izek.k i=ksa ls ekbZfuax ,oa isVªksy rFkk ,p,lMh tkjh fnukad ls foyksfir fd;k tkosaA la;qDr vk;qDr jkT; dj fcykliqj laHkkx dzekad & nks (2) dk;Zky; la;qDr vk;qDr jkT; dj fcykliqj laHkkx dzekad &nks dz-@la-vk-@jk-dj@th,lVh@2020@1104 fcykliqj fnukad 01-10-2020 izfr] fuxjkuh iz-dz- 153@vk-lh- & 1@2020 ¼izakrh;½ esllZ lquhy dqekj vxzoky] fu;j xYlZ dkWyst jk;x<+ ¼N0x0½ fVu & 22274902941 fo"k; %& lh&QkeZ dk nq:i;ksx fd;s tkus ds dkj.k izakrh; iath;u izek.k i= ls ekbZfuax xfrfof/k ,oa gkbZ LihM Mhty dk foyksiu fd;s tkus rFkk iath;u izek.k Neutral Citation 2023:CGHC:22201-DB 19 i= esa la'kksf/kr gsrq lwpuk i=A &000& izdj.k ds voyksdu esa ;g ik;k x;k gS fd okf.kfT;d dj vf/kdkjh ds }kjk ekbZfuax vksoj cMZu dks =qfViw.kZ ekbZfuax ekuk tkdj vkids izkarh; ,oa dsUnzh; iath;u izek.k i= esa mR[kUu dk;Z gsrq ekbZfuax e'khujh ds fy, ,p,lMh ntZ fd;k x;k gS] tks fd izFke n`"V;k =qfViw.kZ gSA vr% okf.kfT;d dj vf/kdkjh ds vkns'[email protected]; ds fo:) izdj.k ewY; laof/kZr dj vf/kfu;e dh /kkjk 49¼1½ ds rgr~ Loizsj.kk ls fuxjkuh esa fy;k tkdj vkidks lwfpr fd;k tkrk fd vki ,sls leLr rF;] lk{; ,oa vU; nLrkost ftuls ;g izekf.kr fd;k tk lds fd vkids }kjk ekbZfuax dk dk;Z fd;k tkrk gSA fnukad 03-10-2020 'kke 5%30 rd bZ&esy ds ek/;e ls vFkok lacaf/kr dk;kZy; okf.kfT;d dj esa izLrqr dj ldrs gS] lkFk gh ;fn vkids }kjk ekbZfuax dk dk;Z fd;k tkrk gS ,oa jk;YVh tek dh tkrh gS vFkok [kfut foHkkx esa fooj.kh izLrqr dh tkrh gS ;k ekbZfuax gsrq yk;lasl gS] rks bldk Hkh lk{; fu/kkZfjr le; esa izLrqr djsa] vU;Fkk D;ksa u vkidks iath;u izek.k i=ksa ls ekbZfuax ,oa isVªksy rFkk ,p,lMh foyksfir fd;k tkosaA la;qDr vk;qDr jkT; dj fcykliqj laHkkx dzekad & nks Amended notice issued by the respondent-department (3) la'kksf/kr lqpuk i= dk;Zy; la;qDr vk;qDr jkT; dj fcykliqj laHkkx dzekad &nks dz-@la-vk-@jk-dj@th,lVh@2020@1104 fcykliqj fnukad 01-10-2020 izfr] fuxjkuh iz-dz- 153@vk-lh- & 1@2020 ¼izakrh;½ esllZ lquhy dqekj vxzoky] fu;j xYlZ dkWyst jk;x<+ ¼N0x0½ fVu & 22274902941 fo"k; %& lh&QkeZ dk nq:i;ksx fd;s tkus ds dkj.k izakrh; iath;u izek.k i= ls Neutral Citation 2023:CGHC:22201-DB 20 ekbZfuax xfrfof/k ,oa gkbZ LihM Mhty dk foyksiu fd;s tkus rFkk iath;u izek.k i= esa la'kksf/kr gsrq lwpuk i=A &000& izdj.k ds voyksdu esa ;g ik;k x;k gS fd okf.kfT;d dj vf/kdkjh ds }kjk ekbZfuax vksoj cMZu dks =qfViw.kZ ekbZfuax ekuk tkdj vkids izkarh; ,oa dsUnzh; iath;u izek.k i= esa mR[kUu dk;Z gsrq ekbZfuax e'khujh ds fy, ,p,lMh ntZ fd;k x;k gS] tks fd izFke n`"V;k =qfViw.kZ gSA vr% okf.kfT;d dj vf/kdkjh ds vkns'[email protected]; ds fo:) izdj.k ewY; laof/kZr dj vf/kfu;e dh /kkjk 49¼3½ ds rgr~ Loizsj.kk ls fuxjkuh esa fy;k tkdj vkidks lwfpr fd;k tkrk fd vki ,sls leLRk rF;] lk{; ,oa vU; nLrkost ftlls ;g izekf.kr fd;k tk lds fd vkids }kjk ekbZfuax dk dk;Z fd;k tkrk gSA fnukad 03-10-2020 'kke 5%30 rd bZ&esy ds ek/;e ls vFkok lacaf/kr dk;kZy; okf.kfT;d dj esa izLrqr dj ldrs gS] lkFk gh ;fn vkids }kjk ekbZfuax dk dk;Z fd;k tkrk gS ,oa jk;YVh tek dh tkrh gS vFkok [kfut foHkkx esa fooj.kh izLrqr dh tkrh gS ;k ekbZfuax gsrq yk;lasl gS] rks bldk Hkh lk{; fu/kkZfjr le; esa izLrqr djsa] vU;Fkk D;ksa u vkids iath;u izek.k i=ksa ls ekbZfuax ,oa isVªksy rFkk ,p,lMh foyksfir fd;k tkosaA la;qDr vk;qDr@mi vk;qDr okf.kfT;d dj jkT; dj fcykliqj laHkkx dzekad & nks
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Reply filed by the petitioner izfr] la;qDr vk;qDr jkT;dj vf/kdkjh fcykliqj ¼N0x0½ lquhy dqekj vxzoky lsok dqUt jksM jk;x<+ ¼N0x0½ fVu ua- 22274902941 Neutral Citation 2023:CGHC:22201-DB 21 fo"k; %& vkidk lqpuk i= lsaVªy VSDl vf/kfu;e fd /kkjk 9¼2½ rFkk lifBr ewY; lof/kZr dj vf/kfu;e fd /kkjk 49¼1½ ds rgr tkjh dsUnzh; iath;u izek.k i= ls ekbZfuax xfrfo/k ,oa gkbZ LihM Mhty foyksiu fd;s tkus gsrqA fuosnu gS fd mDr ukekafdr O;olkbZ fo"k;kafdr ckcr~ fuEufyf[kr LiLVhdj.k izLrqr djrk gSA 1- ;g fd O;olkbZ ds }kjk oDlZ dkWUVSDV ds varxZr Bsdk ij dk;Z fd;k tkrk gS ftlds varxZr jksM fuekZ.k] iqy] dSuky] ugj] flfoy] odZ rFkk ekbZfuax vksoj cMZu dk dk;Z fd;k tkrk gSA 2- ;g fd O;olkbZ dks SECL jk;x<+ ls izkIRk dk;Z vkns'k ds }kjk ekbZfuax dk;Z ds varxZr fuEudk;Z djus gsrq dk;kZns'k izkIr gqvk gSA A) Site Preparation B) Drilling of earth C) Removable of overburdens 3- ;g fd loZizFke Site Preparation ds varxZr Removable of topsoil and sub soil and their storage of reused after the mining operation ds dk;Z gsrq bulldozer, Excavator, tippers and other mining equipment's dk mi;ksx fd;k tkrk gSA 4- ;g fd Site Preparation works ds i'pkr ;fn overburden ds hardsteta vkus ds i'pkr mlds CykfLVax ds dk;Z dh vko';drk vkrh gS ftlds varxZr gekjs }kjk flQZ drilling dk dk;Z fd;k tkrk gS rFkk CykfLaVx dk dk;Z Bsdk iznkrk daiuh ds }kjk fd;k tkrk gSA 5- ;g fd drilling and blasting ds dk;Z ds i'pkr Removable of overburdens dk dk;Z fd;k tkrk gS ftldh fuEu rjhdksa ls fd;k tkrk gSA A) Shovelsloading out the material into the tippers which in turn dump the material at inside or outsidedumps. B) Dragline, Shovels & tipper combination.
6- ;g fd mDr lEiw.kZ dk;Z ekbZfuax oDlZ ds varxZr vkrk gS] ftldk vkns'k gesa izkIr gqvk gS bl dk;Z esa yxus okys e'khujh ,oa VqYl gsrq O;olkbZ dks HSD fd vko';drk gksrh gSA 7- ;g fd dsUnzh; fodz; dj vf/kfu;e dh /kkjk 8 (B) ds varxZr ekbZfuax dk;Z gsrw HSD dk dz; fj;kfr nj dz; djus dh O;oLkkbZ dks vkrh gS ,oa izLrqr nLrkostksa ds vk/kkj ij ftl dk;Z dk vkns'k izkIr gqvk gS og leLr dk;Z ekbZfuax oDlZ ds varxZRk vkrs gS vr% ekbZfuax dk;Z ds vraxZr vkus okys leLr dk;Z ds fy, lkekxzh dk d;Z djus dh ik=rk O;olkbZ dks vkrh gS ftlds leFkZu esa fofHkUu U;k;ky;ksads fu.kZ; izLrqr gS &
a) Sahdevengineering Ltd. Vs. State of U.P. and others Neutral Citation 2023:CGHC:22201-DB 22
b) Carpo power Ltd. Vs. state of Haryana
c) Shree Raipur cement plant V/s State of Chhattisgarh
d) Hindustan zing Ltd. V/s State of Rajasthan
e) The Ramco Cement Ltd. V/s the Commissioner of Commercial Tax Madras 8-;g fd mijksDr lanfHkZr fu.kZ;ksa ds vraxrZ O;oLkkbZ }kjk fd;k x;k dk;Z ekbZfuax ds Js.kh ds varxZr vkrk gS ftlds vk/kkj ij O;olkbZ ds dsUnzh; iath;u izek.k i= esa ekbZfuax ,.M e'khujh ds fy, HSD ntZ fd;k x;k gS tks fd loZFkk mfpr gSA 9- ;g fd O;olkbZ }kjk fd;s x, dk;Z ij jks;YVh dk Hkqxrku dk nkf;Ro ugh vkrk vr% [kfut foHkkx esa dksbZ fooj.k izLrqr ugh fd;k tkrk gSA vr% O;olkbZ dks tkjh /kkjk 9 ¼2½rFkk lgifBr ewY; laof/kZr dj vf/kfu;e dh /kkjk 49 ¼1½ ds rgr tkjh lqpuk i= dh dk;Zokgh lekIRk djus dh d`ik djsaA fnukWd %& 03-10-2020 izkFkhZ lquhy dqekj vxzoky lqph layXu 1- Judgment (a) 2- Judgment (b to e) 3- Documents 1-2
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14. A bare perusal of the contents made in the aforesaid notice issued by the respondent-department would reveal the fact that it were issued to the petitioners only for issuance of the proceeding as required under sub-section(3) of Section 49 of the Act of 2005, else no notice as such asking them as to why the entry made in their registration certificates be not deleted would have been issued, although the wrong provision has been shown to be mentioned therein as "sub-section(1)"
Neutral Citation 2023:CGHC:22201-DB 23 instead of "sub-section(3)" of the said provision. But, mere mentioning of the wrong provision as such would ipso facto be not sufficent to vitiate the entire proceedings, as issuance of show cause notice would required to be issued only in sub-section (3) and not under sub- section(1), as observed in precedent paragraphs. Issuance of notice as such, would therefore, lead to an irresistible conclusion that the respondent-department has intended to initiate the proceedings for the amendment of the registration certificates as granted to the petitioners under both the Acts i.e. the State Act and the Central Act, for deleting the words "mining and high speed diesel (HSD)" as mentioned therein.
15. The aforesaid intention of the respondent-department is fortified by the reply itself filed by the petitioner, as from a bare perusal of it would show that the petitioners have neither raised an objection regarding the issuance of alleged notice nor have raised the competency of the authority, who issued the same, till the passing of the order impugned by the respondent-department deleting the words "mining and high speed diesel (HSD)" from their registration certificates. Having failed to raise such an objection at the inception of issuance of the alleged notices and waited up to the passing of the order impugned would, thus, lead to an irresistible conclusion that they are fully aware of the intention of the respondent-department for initiation of such a proceeding under sub-section(3) of Section 49 of the Act of 2005 and, issuance of the said amended notice was nothing, but appears to have been issued only in an abundant cautious as reflected from the conduct Neutral Citation 2023:CGHC:22201-DB 24 of the parties.
16. The aforesaid observations is fortified by the principles laid down by the Supreme Court in the matter of Commissioner of Sales Tax and others vs. Subhash & Co. (supra), as relied upon by the learned counsel appearing for the appellants. That is the case, where the assessing officer had initiated the re-assessment proceedings as required under sub-section(1) of Section 19 of the Madhya Pradesh General Sales Tax Act, 1958 against the assessee while issuing a notice on the address given in his registration certificates. Since, the assessee was not found to be resided in a given address, it was, therefore, served while adopting the affixture/substituted method, which was held to be not duly served upon him as there was some procedural defect was found in the same. In that factual scenario, it was observed by the Supreme Court that if the assessee knows about the proceeding initiated against them, therefore, merely only on the ground that there was some irregularity in the service of notice, the entire proceedings cannot be held to be defective. The observations made at paragraphs 12, 16 and 22 (iii) are relevant for the purpose, which read as under:-
12. ..................................................................................
"In a given case, if the assessee knows about the proceedings and there is some irregularity in the service of notice, the direction for continuing proceedings cannot be faulted..............."
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16. "Notice", in its legal sense, may be defined as information concerning a fact actually communicated to a party by an authorised person, or actually derived by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded as equivalent to knowledge in its Neutral Citation 2023:CGHC:22201-DB 25 legal consequences. Dictionary further states : CO Lit 309 Tomlin's Law Dictionary
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22. The emerging principles are:
.................................
(iii) If prejudice has been caused by non-issue or invalid service of notice the proceeding would be vitiated. But irregular service of notice would not render the proceeding invalid; more so, if the asssessee by his conduct has rendered service impracticable or impossible.
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17. Applying the aforesaid principles laid down by the Supreme Court to the case in hand, vis-a-vis the intention of the respondent- department as reflected and observed from the issuance of the alleged impugned notices and the reply to it filed by the petitioners, it is difficult to hold that the order impugned deleting the words "mining and high speed diesel (HSD)" from their registration certificates has been passed by the respondent-department without the issuance of proper notice, as alleged by the petitioners.
18. Consequently, the appeals preferred by the respondent- department are allowed and the common impugned order passed by the learned Single Judge in bunch of writ petitions is hereby set aside and the matter is accordingly remitted back to the learned Single Judge for its decision in accordance with law.
No order as to costs.
SD/- SD/-
(Goutam Bhaduri) (Sanjay S. Agrawal)
Judge Judge
Tumane