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2013 DIGILAW 410 (JHR)

Tata Steel Ltd. v. State of Jharkhand

2013-03-21

P.P.BHATT, PRAKASH TATIA

body2013
ORDER By the Court.- Heard learned counsel for the parties. 2. The petitioner is challenging the show-cause notice dated 6.3.2013, Annexure-7, whereby the petitioner, was served with the notice as to why penalty under Section 40(2) of the Jharkhand Value Added Tax Act, 2005 be not imposed. It appears from the facts of this, case as well as from the arguments of the learned counsel for the petitioner that initially proceedings were initiated against the petitioner, which according to the petitioner, were dropped, vide order dated 2.2.2013 and thereafter petitioner was served with a notice under Section 40 of the Act, copy of which has been placed on record as Annexure-2, fixing a date as 1.3.13 and in response to the said notice, petitioner submitted its objections to the notice, copy of which has been placed on record as Annexure-4 and thereafter petitioner was served with yet another notice purported to be under Section 40(2), which is dated 2.3.2013, copy of which has been placed on record as Annexure-5. The first paragraph of this notice, Annexure-5, which is typed in English, is purported to be under Section 40 of the Act and in the second part of this notice, specific facts have been mentioned incorporating reasons for issuance of notice under Section 40(2) of the Act. By this notice, Annexure-5, dated 2.3.2013, a date was fixed as 6.3.2013. Against this notice, objections were submitted by the petitioner specifically under Section 40(1) as well as under Section 40(2) of the Act of 2005, copy of which is placed on record as Annexure-6. Then it appears that the Revenue issued notice. Annexure- 7, which is dated 6.3.13. In this subsequently issued notice, first part of the notice. Annexure-5 dated 2.3.2013, has been scored out and therefore, this notice, Annexure-7, remained as notice under Section 40(2) of the Act of 2005, which is sought to be challenged. 3. Learned counsel for the petitioner submitted that once the proceedings have been dropped and when there is no assessment, no question of reassessment under Section 40 of the Act can arise. It is also submitted that under Section 40(2), no penalty can be imposed, which is apparent from Section 40(2) of the Act of 2005 and therefore, the condition precedent is not satisfied for issuance of notice. 4. It is also submitted that under Section 40(2), no penalty can be imposed, which is apparent from Section 40(2) of the Act of 2005 and therefore, the condition precedent is not satisfied for issuance of notice. 4. Learned counsel for the petitioner heavily relied upon the judgment of Division Bench of the Patna High Court delivered in the case of M/s. Shri Durga Industries v., State of Bihar & another, reported in 1985 BRLJ 7 and also relied upon the judgment of Hon'ble Supreme Court delivered in the case of Siemens Ltd. v. State of Maharashtra & others, reported in (2006) l2 SCC 33. It appears from the judgment delivered in the case of M/s. Shri Durga Industries that in that writ petition, assessment order was challenged, wherein there was finding recorded in favour of the assessee and on the basis of that finding recorded by the assessing authority itself, the Division Bench held that nothing was concealed from the return by the petitioner of that case and then the Division Bench observed that instead of disagreeing with the return and proceeding with the assessment, treating that as a concealment, the fine has been imposed. In the facts, levying fine was found to be absolutely illegal and arbitrary to the finding recorded by the assessing authority, which was not disagreed by the higher authority. Be that as it may, that was the case of challenge to the assessment order, where penalty had been imposed. The said judgment has, thus, no application to the facts of the instant case because in this case, no assessment order imposing penalty has been passed. 5. Peculiar fact in the case before us is that, notice under Section 40 of the Act was served upon the petitioner, against which it raised objections in writing; then the petitioner was served composite notice, which is under Section 40 and 40(2) of the Act, which too had been replied and objections had been filed by the petitioner, copy of which has been placed on record by the petitioner. Thereafter it appears from the facts that the assessing authority may have found reasons to issue another notice under Section 40(2) and therefore, scored out the first part of the earlier notice purported to be under Section 40 of the Act and therefore, issued the notice under Section 40(2) of the Act of 2005. Thereafter it appears from the facts that the assessing authority may have found reasons to issue another notice under Section 40(2) and therefore, scored out the first part of the earlier notice purported to be under Section 40 of the Act and therefore, issued the notice under Section 40(2) of the Act of 2005. When the petitioner already appeared in the proceedings before the assessing authority and submitted its objections to both the notices one under Section 40 and another under Section 40(2), we are, thus, of the considered opinion that the facts of this case are entirely different from that of the case of Siemens Ltd, also, wherein Hon'ble Supreme Court held that in a case when the show-cause notice is a premeditation and already an opinion has been formed regarding liability, in that situation writ to challenge the notice is maintainable. It is also held by Hon'ble Supreme Court that, if the notice is wholly without jurisdiction, writ can be entertained. However, Hon'ble Supreme Court, after holding so, also observed that ordinarily a writ Court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show-cause and so was the view taken by Hon'ble Supreme Court in earlier decision also. 6. Whether a writ petition is to be entertained is a judicial discretion, which is required to be taken on the basis of the facts of each case. In this case, the petitioner appeared before the same authority and submitted objections. Thus, at this stage, there is no reason to entertain the writ petition, when the petitioner submitted objections to those notices dated 13.2.2013 and 2.3.2013 and rushed to this Court by filing the instant writ petition on 8.3.2013. The writ petition is, therefore, dismissed. 7. Learned counsel for the petitioner submitted that the notice is vague and therefore, on this ground also, the writ petition may be entertained. 8. As we have already observed that once objections have been submitted before the authority and the authority is competent to decide all the objections, in that situation also, we are not inclined to entertain this writ petition. We are making it clear that we have not expressed any opinion on the merit of the case or with respect to the merit of any of the objections raised by the petitioner and the authority may decide the objections in accordance with law. We are making it clear that we have not expressed any opinion on the merit of the case or with respect to the merit of any of the objections raised by the petitioner and the authority may decide the objections in accordance with law. The authority will endeavour to decide all the objections and if law permits, the petitioner may file fresh application also. Petition disposed of.