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2016 DIGILAW 457 (JK)

Afcons Infrastructures Ltd. v. State

2016-09-20

B.S.WALIA, R.SUDHAKAR

body2016
JUDGMENT : 1. Admit. 2. Issue post-admission notice. 3. Mr. Manik Wazir, Advocate accepts notice on behalf of respondents. 4. At the time of admission, considering the limited scope for relief sought for in the petition; Shri D.C. Raina, learned Sr. counsel pleaded that the writ petition may be disposed off finally. We have considered the said plea. 5. The petitioner is engaged in the construction of road. For construction of a road between Jammu and Udhampur, a tender was floated by NHAI. The petitioner being the successful tenderer has been executing the projects in the State of J&K since 2005. The petitioner is a registered dealer under J&K G.S.T. Act and under J&K VAT Act. 6. The petitioner is enjoying certain tax benefits as applicable to the industrial unit or dealers involved in execution of work contract from payment of entry tax upon the entry/importation of various goods into the State of J&K. This is based on exemption granted under SRO 428 of 2003 and other SRO as may be applicable. 7. The issue for consideration is whether the respondents are justified in denying exemption inter alia to consumable goods used in the works contract. Denying the same, a reasoned order is passed by the Assessing Authority, Commercial Tax, Check Post, Lakhanpur, J&K in respect of several consignments. These assessment orders are challenged by way of appeals before the Appellate Authority. 8. It is stated by the learned senior counsel for the petitioner that nearly 34 appeals are pending and few more appeals will be filed as and when fresh orders are passed. Since it is an ongoing contract and it has great financial implications petitioners’ business is seriously affected as the respondents are denying the benefit of the exemption. Further the interest of petitioner as well as of the State is affected by the series of pending litigations. 9. It is pleaded that the Appellate Authority should decide the issue at the earliest date more so in view of the provisions of Rule 52 of J&K General Sales Rules which provides for a time bound disposal of the appeals. 10. In this view of the matter, the plea of Mr. D.C. Raina, learned Sr. counsel is that the appeals should be decided at an earliest so that both the parties are clear on the liability. If aggrieved, petitioners will pursue the remedy as per law. 11. 10. In this view of the matter, the plea of Mr. D.C. Raina, learned Sr. counsel is that the appeals should be decided at an earliest so that both the parties are clear on the liability. If aggrieved, petitioners will pursue the remedy as per law. 11. Learned counsel for the respondents states that the department has no serious dispute for early disposal of the appeal, if the appeals are otherwise in order. Rule 52 (b) of the J&K General Sales Tax Rules 1962 provides as follows “The Appellate Authority shall not ordinarily allow more than two adjournments on the request of the appellant and in case the appellant or his agent fails to appear on the dates of hearing the order shall be passed exparte on the merits of the case. The Appellate Authority shall not give more than one adjournment on the request of the Assessing Authority if such authority wants to represent his case.” 12. The provisions as above makes it clear that time is the essence. In this view of the matter, we direct the Appellate Authority to dispose of the appeal, if it is in order, keeping in mind Rule 52 (b) of the J&K G.S.T. Rules, 1962. The respondents-authority to file a report on the status of the appeal as and when disposed. 13. The further issue raised by learned Sr. counsel is that the Competent Authority should pass speaking orders in respect of subsequent clearance of goods accepting or denying the benefits. If exemption is denied, a speaking order has to be passed and that has not been passed despite detailed representations been made time and again. The representations are cited as Annexure-J in the writ petition. There can be no impediment in passing speaking order, if the exemption is denied 14. In this view of the matter, we are inclined to direct the Assessing Authority to conclude the assessment proceedings by passing a speaking order at the earliest, if there is no other legal impediment in law, so as to enable the petitioners to avail the remedy under law. Writ petition disposed off on the above terms.