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2016 DIGILAW 632 (JK)

AAR BEE Industries v. State

2016-12-06

MUZAFFAR HUSSAIN ATTAR

body2016
JUDGMENT : Muzaffar Hussain Attar, J. 1. In this writ petition, following reliefs are sought by the petitioner. (a) Issue a writ or writ in the nature of mandamus directing the respondents to reimburse the VAT relief amounting to Rs. 2,17,80,832.61/- (Rupees Two Crore Seventeen Lacs Eighty thousand Eight Hundred Thirty Two and paisa sixty one only) from January 2008 onwards in view of 1Govt. Order 168-IND of 2005 dated 30.6.2005. (b) Issue Writ of Mandamus commanding respondent No. 5 to make supply of inputs (Raw material) to the petitioner. (c) Any other appropriate writ, order or direction which this Hon'ble Court may deed fit in the facts and circumstances of the case in favour of the petitioner. (d) Petitioner be also awarded cost of litigation. Court order dated 25.02.2016, in view of the affidavit filed by the Managing Director, J & K SICOP, ordered for impleadment of respondent Nos. 6 & 7 as party respondents in this petition. 2. Court order dated 25.02.2016 is taken note of:- 'Pursuant to and in compliance with order passed on 17.02.2016, the Managing Director, JK SICOP, herein respondent No. 4, has filed an affidavit stating clearly that the SICOP had raised bill to the petitioner/SSI unit which included cost of raw material, VAT @ 12.5% and service charges @ 0.25% and that the SICOP in turn had released the said amount including the VAT component in favour of the suppliers. In this affidavit names of the supplier have been given as M/s. S.B. Traders and M/s. Flavour International. On asking, Mr. Abrol, learned counsel for respondent Nos. 4 & 5, provides full particulars of both these suppliers, which are taken on record. Besides, respondent No. 4 has also stated in his affidavit that suppliers were under an obligation to deposit the VAT component with the Commissioner Taxes Department, which they, however, have not. Positive stand of respondent Nos. 4 & 5 clearly is that they had received the VAT component too from the petitioner in regard to the purchase of raw material by the petitioner during the relevant period and paid the same to the suppliers along with cost of the material supplied by them and their allegation is that the suppliers did not deposit the VAT component with the Commissioner Taxes Department which they were under obligation to do. Having regard to the claim of the petitioners, who are seeking refund of the VAT component in terms of the Industrial Policy in vogue and positive stand of respondent Nos. 4 & 5, aforementioned suppliers become necessary party to this writ petition as their response is imperative for proper adjudication of the matter, more for the reason that an important question relating to State exchequer is involved. Both the aforementioned suppliers are thus impleaded as respondent Nos. 6 & 7 to this writ petition. Registry shall effect the corresponding change in the cause title showing their full particulars. Two weeks' notice to respondent Nos. 6 & 7 to be served through the District Judge, Samba. Mr. Abrol makes a prayer for impleading Commissioner Taxes Department also as party respondent. Such prayer, however, can be considered only after a Motion in this regard is laid' List in the week commencing 21.03.2016, higher up.' 3. Respondent Nos. 4 & 5 filed an application on 20.04.2016 which is registered as MP No. 02/2016 wherein they prayed that the Commercial Taxes Department through its Commissioner may be impleaded as party respondent No. 8. 4. Writ petitioner has filed objections to the said application. 5. Learned counsel for the applicants submitted that in order to ascertain whether the VAT has been paid to the Commercial Taxes Department, it becomes necessary to implead it as party respondent. Learned counsel further submitted in the affidavit filed by respondent No. 4 which is taken note of in the order dated 25.02.2016, it has been stated by the said respondent that Suppliers who are under obligation to pay the VAT and deposit the same with the Commercial Taxes Department, have not paid the same. Learned counsel submitted that the factum of deposit of VAT can be ascertained only from the Commercial Taxes Department. Learned counsel submitted that since the public money is involved, it becomes necessary for the Court to implead Commercial Taxes Department through its Commissioner as party respondent. 6. Mr. Johal, learned senior counsel appearing for the writ petitioner, submitted that in the facts of this case, there is no requirement of impleading the Commercial Taxes Department as party respondent in the petition. Learned counsel while elaborating law submitted that the documents placed on record along with objections of the writ petitioner demonstratively show that the VAT has been paid by respondent Nos. Learned counsel while elaborating law submitted that the documents placed on record along with objections of the writ petitioner demonstratively show that the VAT has been paid by respondent Nos. 6 & 7 and in law, the petitioner is entitled for its reimbursement. Learned counsel submitted that in view of the documents placed on record along with the objections, it is admitted position that the VAT has been paid by respondent Nos. 6 & 7. 7. Learned counsel also referred to the interim order dated 27.09.2016 to indicate that MP No. 02/2016 was considered by the Court and it was observed that the issues will be considered during arguments, if necessary, for arraying Commissioner, Commercial Taxes Department as party respondent. 8. Learned counsel also referred to and relied upon the judgment of Hon'ble Madras High Court reported as (2013) 60 VST 283 (Mad) and submitted that in view of the law laid down by the Hon'ble Madras High Court, there is no requirement of impleading the Commercial Taxes Department as party respondent in this petition. 9. The petitioner is seeking reimbursement of the Value Added Tax amounting to Rs. 2,17,80,832.61 paisa. This claimed is based on Government Policy notified in Government Order No. 168-IND of 2005 dated 30.06.2005. 10. In the proceedings which are brought to the notice of the Court, a party claims relief and for that he is duty bound to implead the authorities/persons as parties, who will have to meet that claim or would suffer the judgment as party respondent. Such authorities/parties are always necessary parties in the proceedings as in their absence, either the petitions are to be dismissed or no appropriate relief can be granted by the Court of law. 11. In the facts of this case, the Court on 25.02.2016, in view of the stand taken by respondent No. 4 in his affidavit that the VAT has not been paid to the Commercial Taxes Department, ordered for impleading of respondent Nos. 6 & 7 as party respondents in this petition. 12. Since respondent No. 4 has taken a specific stand in the affidavit that the VAT has not been paid to the Commercial Taxes Department, the authorities of the said Department not only become proper party but necessary party for the adjudication of the issue raise in this petition. 6 & 7 as party respondents in this petition. 12. Since respondent No. 4 has taken a specific stand in the affidavit that the VAT has not been paid to the Commercial Taxes Department, the authorities of the said Department not only become proper party but necessary party for the adjudication of the issue raise in this petition. Documents enclosed with the objections by the writ petitioner are to be put to the authorities of the Commercial Taxes Department, they have to admit or deny existence of documents which are in the shape of Xerox copies. No reliance at this stage can be placed on Xerox copies of the so called assessment order/documents of the Commercial Taxes Department. It is only when the authorities of the Commercial Taxes Department is impleaded as party respondent that he will be asked to deal with these documents. At this stage, it will not only be premature but risky to rely upon all these documents. Interim order dated 27.09.2016 does not preclude the Court to order for impleadment of the authorities of Commercial Taxes Department as party respondent. The impleadment of the said authority as party respondent at this stage would facilitate proper consideration and disposal of the case. 13. The judgment cited at bar by learned counsel for the writ petition will be of no help to him at this stage, inasmuch, in the said case, Assistant Commissioner, Commercial Taxes Department was the 1st respondent in the petition so the authority had the opportunity to deal with the contention raised in the pleadings. This judgment would, thus, require impleadment of Commercial Taxes Department as party respondent. 14. For the above said reasons, MP No. 02/2016 is allowed. Commissioner, Commercial Taxes Department is impleaded as party respondent and shall figure as respondent No. 8 in the array of the respondents. 15. Notice to the impleaded respondent No. 8. 16. At this stage, Mr. Ahtsham Bhat, learned GA vice learned Advocate General, appeared and submitted that he has instructions to appear and accept notice on behalf of the impleaded respondent. His submission is taken on record. 17. List this writ petition for consideration in week following the next, higher up. 18. Meanwhile, reply affidavit by the impleaded respondent. 16. At this stage, Mr. Ahtsham Bhat, learned GA vice learned Advocate General, appeared and submitted that he has instructions to appear and accept notice on behalf of the impleaded respondent. His submission is taken on record. 17. List this writ petition for consideration in week following the next, higher up. 18. Meanwhile, reply affidavit by the impleaded respondent. Copy of the writ petition as also copy of the objections, copy of MP No. 02/2016 and its objections along with documents shall be provided to learned GA within two days' time by learned counsel for the petitioner.