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CIVIL APPEAL ARISING OUT OF SLP (C) NO. 19104 OF 2008

4. The facts leading to the filing of the case in the appeal arising out of SLP (C) No. 19104 of 2008 are that the respondent-M/s Shivam Coke Industries, Dhanbad is a manufacturer of coal and was registered under the provisions of the Bihar Finance Act, 1981 [now repealed - for short "BFT Act, 1981"] and presently under the provisions of Jharkhand Value  Added Tax, 2005. Respondent-assessee being manufacturers of hard coke buys coal from Bharat Coking Coal Ltd. after making the payment of local Sales Tax @ 4% which is being used as an input for the purpose of manufacturing the hard coke. Respondent was assessed to tax for the Financial Years 1988-89, 1992-93 and 1996-97 determining the tax on intra-State sales transactions as well as Central Sales Tax on inter-State sales transactions. Respondent preferred an Appeal before the Joint Commissioner of Commercial Taxes (Appeals), Dhanbad Division, Dhanbad against the assessment orders passed between 26.4.1990 to 23.12.1998 for the Financial Years 1988-89, 1992-93 and 1996-97, who vide order dated 25.08.2003 remanded the aforesaid assessment proceedings by a common order to re-examine the books of account and to re-determine the nature of sales as to whether they are intra-state sales or inter-state sales, on the basis of the books of account and the audit reports as well as on the basis and within the meaning and scope of Section 3(a) of the Central Sales Tax Act, 1956 (for short "the CST Act").

25,000/-. Thereafter in the year 2006, as is alleged by the respondent, the Deputy Commissioner of the Dhanbad Circle got changed and the new Deputy Commissioner examined the revised assessment orders of the Respondent and he opined that the revised assessment orders do not conform to the appellate direction and Deputy Commissioner informed the Joint Commissioner of Commercial Taxes (Administration) about his observations. The Joint Commissioner of Commercial Taxes (Administration), Dhanbad Division, Dhanbad [Appellant No. 4] then initiated the proceeding suo motu under Section 46(4) of the adopted Bihar Finance Act, 1981 [now repealed] and issued notice/Memo No. 744 dated 1.8.2007 directing the Respondent to furnish the complete sets of books of account in order to determine the legality and propriety of the said revised assessment orders conforming to the appellate order. On 28.11.2007 Respondent filed Writ Petition before the High Court of  Jharkhand which was registered as WP (T) No. 6377 of 2007 praying for a direction to quash the notice/Memo No. 883 dated 20.9.2007 [which was issued in pursuance to earlier notice/Memo No. 744 dated 1.8.2007] issued by the Joint Commissioner of Commercial Taxes (Administration) for initiating the proceeding suo motu under Section 46(4) of the repealed BFT Act, 1981 and also for quashing the order dated 26.11.2007 passed by the Joint Commissioner of Commercial Taxes by which he set aside the revised assessment order dated 26.12.2003. The High Court of Jharkhand vide its order dated 14.03.2008 allowed the Writ Petitions of the respondent herein against which the appellants have filed the present appeals on which we heard the learned counsel appearing for the parties.

CIVIL APPEALS ARISING OUT OF SLP (C) NOS. 19105-06 OF 2008

5. The facts leading to the filing of appeals arising out of SLP (C) Nos.

19105-06 of 2008 are that the Respondent -M/s. Rani Sati Coke Manufacturing Company, Baliyapur, Dhanbad is engaged in processing of coal to coke and was assessed to tax for the Financial Years from 1984-85 to 2000-2001 determining the tax on "intra-State sales" transactions, as well as Central Sales Tax on inter-State sales transactions. Respondent  filed an appeal against the assessment orders passed between 29.12.1987 to 10.3.2003 for the Financial Years from 1984-85 to 2000-01 and the appellate authority, i.e., the Joint Commissioner of Commercial Taxes (Appeal), Dhanbad Division, Dhanbad remanded the aforesaid assessment proceedings by a common order to re-examine the nature of intra-State sales and inter-State sales on the basis of the books of account and the audit reports as well as on the basis of the meaning and scope of Section 3(a) of the CST Act, 1956. Thereafter, the Deputy Commissioner of Commercial Taxes passed the revised assessment order vide orders dated 14.12.2005 and 29.12.2005 reversing / converting the then inter-State sales under Section 3(a) of the CST Act, 1956 into the intra-State sales.

You are hereby directed to be present before the undersigned on 15.5.2007 and place your side as to why the above stated revised orders should not be set aside? 

Joint Commissioner of Commercial Taxes (Adm.) Dhanbad Division, Dhanbad"

24. Such orders are also existing against similar notices in the connected matters.

25. Relying on the aforesaid two documents, the counsel for the respondent submitted before us that it is apparent on the face of the record that the Joint Commissioner of Commercial Taxes initiated the suo motu action on the basis of the letter of the Deputy Commissioner, Commercial Taxes who had stated that the revision should be filed under Section 46(4) of the BFT Act, 1981. It was submitted in such a situation and that since it is an application filed by the Deputy Commissioner, the same was a power to be exercised under Section 46 (2) of the BFT Act, 1981 which is an ordinary power of revision to be exercised by the competent authority on an application filed by the aggrieved party and here the Deputy Commissioner. According to the counsel, since the Deputy Commissioner is an aggrieved party, he could file such an application seeking for revision within a period prescribed i.e. 90 days and in that view of the matter even if the Joint Commissioner exercises suo  motu power, such power could and should have been exercised within a period of 90 days as prescribed.