JUDGMENT 1. Heard learned counsel for the petitioner Company and the learned counsel for the respondent-State. 2. The petitioner Company is aggrieved by the impugned remand assessment order dated 16.02.2015, passed by the Assistant Commissioner of Commercial Taxes, Jamshedpur Circle, as contained in Annexure-11 to the writ application, as also the order dated 04.10.2018, passed by the Additional Commissioner of Commercial Taxes, Jharkhand, Ranchi, in Revision Case No. CC(S) 1292A of 2016, as contained in Annexure-13 to the writ application, whereby the order passed by the Assessing Authority was affirmed, though the matter was again remanded back on a limited issue. 3. The petitioner Company is the manufacturer of excavators, cranes and its spare parts which are the earth moving machineries, which are claimed to be capital goods. For the sale of these capital goods, according to the case of the petitioner Company, the Company was liable to make the payment of Value Added Tax (herein after referred to as ''VAT''), @ 4%, but the assessment of VAT liability of the petitioner Company was made @ 12.5.%, for the assessment year 2006-2007. Admittedly, the tax liability @ 4% had already been discharged by the petitioner Company for the said assessment year. 4. The petitioner challenged the original assessment order before the Revisional Authority in Revision Case No. CC(S) 1126 of 2011. The said revision was disposed of by order dated 19.02.2013, passed by the Commissioner of Commercial Taxes, Jharkhand, Ranchi, remanding back the matter to the DCCT, Jamshedpur Circle, Jamshedpur, to decide the matter on merits afresh and to pass fresh order giving the petitioner a reasonable opportunity of hearing and to produce the relevant documents in support of their claims. The said order was communicated to the DCCT, Jamshedpur, under Memo No. 894 dated 20.02.2013, as is apparent from Annexure-7 to the writ application. 5. The dispute in the present case arises hereafter. The said order was communicated to the DCCT, Jamshedpur, under Memo No. 894 dated 20.02.2013, as is apparent from Annexure-7 to the writ application. 5. The dispute in the present case arises hereafter. The assessment order on remand has been shown to have been passed by the Assistant Commissioner of Commercial Taxes, Jamshedpur Circle, on 16.02.2015, showing in the order-sheet that the matter was heard on that date and separate detailed order was passed, but according to the petitioners case, no hearing was given to the petitioner on that date and the order was passed beyond the period of two years, but has been ante-dated as 16.02.2015, in order to bring it within the period of limitation of two years, as prescribed under Section 42(2) of the Jharkhand Value Added Tax Act, 2005 , (herein after referred to as the ''JVAT Act''). 6. Learned counsel has brought on record the entire order-sheet of the Assessing Authority, as Annexure-8 to the writ application and has submitted that no action was taken by the respondent Assessing Authority upon the remand order for about 23 long months, and only on 08.01.2015 the first order after the remand was passed showing that the remand order dated 20.02.2013 had been received in the Court. By that order the date of hearing was fixed on 27.01.2015. The order-sheet of 27.01.2015 shows that the matter was heard in part and the case was fixed for further hearing on 14.02.2015. The next order in the order-sheet is dated 14.02.2015/16.02.2015, which shows that the matter had been heard and a detailed order had been passed separately. It is the case of the petitioner that no hearing was given on 14.02.2015 or 16.02.2015 to the petitioner Company and actually an ante-dated order was passed on that date, which is also evident from the fact that the order-sheet would further show that for the first time on 20.03.2015 it was mentioned in the order-sheet that the demand notice could not be served on the assessee and the process server had reported that he could not meet the concerned representative of the Company. More or less similar entries have been made in the order-sheet on 17.06.2015, 21.09.2015, 10.01.2016, 12.04.2016 and 28.06.2016. More or less similar entries have been made in the order-sheet on 17.06.2015, 21.09.2015, 10.01.2016, 12.04.2016 and 28.06.2016. It is only thereafter that the demand notice was served upon the petitioners advocate on 02.08.2016, i.e., after a lapse of more than 17 months from the date of passing of the alleged remand assessment order. It is the case of the petitioner, that the advocate on whom the demand notice was served, was the retained advocate of the petitioner Company for the last ten years, and was regularly attending the office of the Assessing Authority in connection with other cases of the petitioner, but the said demand notice was never served on the learned counsel earlier. The case of the petitioner is that all these entries of the dates right from 14.02.2015/16.02.2015 are ante-dated entries. 7. The specific statements of the aforesaid facts have been made by the writ petitioner in paragraphs 37 to 55 of the writ application stating that these insertions have been made in the order-sheet to cover up the period of limitation as prescribed under Section 42(2) of the JVAT Act. 8. It is further case of the petitioner that this ground had been taken before the Revisional Authority also, in his revision filed before the Commissioner, Commercial Taxes, Jharkhand, but the Revisional Authority has not dealt this point in his order dated 04.10.2018 and has disposed of the revision without speaking a word about the ante-dating of the order by the Assessing Authority and making false entries about the service of the demand notice. 9. A detailed counter-affidavit has been filed on behalf of the State, wherein there is no denial to the aforesaid statements of the writ petitioner. In fact as regards the aforesaid statements of the writ petitioner, it is only stated in paragraph 23 of the counter-affidavit as follows:- ''23. That in reply to the statements made in paragraphs 10 to 16 of the writ application, it is stated that these are mere submissions by the petitioner, hence need no comments. That in reply to the statements made in paragraph 17 onwards of the writ application, it is stated that these are either submissions or matter of record which has been dealt with in the foregoing paragraphs. ---------------.'' Thus we find that only evasive reply has been given to the aforesaid statements made in the writ application. 10. That in reply to the statements made in paragraph 17 onwards of the writ application, it is stated that these are either submissions or matter of record which has been dealt with in the foregoing paragraphs. ---------------.'' Thus we find that only evasive reply has been given to the aforesaid statements made in the writ application. 10. Learned counsel for the petitioner has submitted that the impugned order dated 16.02.2015 passed by the Assessing Authority, as also the revisional order dated 4.10.2018 passed by the Revisional Authority, as contained in Annexures-11 and 13 respectively, to the writ application, are absolutely illegal and bad in the eyes of law and actually the order passed by the Assessing Authority is even void ab initio, as it has actually been passed after the period of limitation, as prescribed under Section 42 (2) of the JVAT Act, but fraudulently shown to be passed within the period of limitation. 11. Learned counsel for the petitioner has further submitted that the goods sold by the petitioner Company were the capital goods and accordingly, the Company was liable to pay VAT at the concessional rate of 4%, which tax liability the petitioner Company has already discharged. Learned counsel submitted that wrongly and illegally, the assessment has been made @ 12.5%, which cannot be sustained in the eyes of law, and in any view of the matter, since the remand assessment order dated 16.02.2015 as contained in Annexure-11 to the writ application has been passed beyond the period of limitation by ante-dating the order, the same is absolutely void ab initio, and consequently, even the revisional order as contained in Annexure-13 to the writ application cannot be sustained in the eyes of law. 12. Learned counsel for the State on the other hand, has opposed the prayer and has submitted that there is no illegality in the impugned orders passed by the Assessing Authority or the Revisional Authority. Learned counsel very fairly submitted that there is no denial to the specific statements made in paragraphs 37 to 55 of the writ application, in the counter-affidavit, in view of the fact that the entire order-sheet has been brought on record, which speaks for itself, and no useful purpose was going to be served by making any comment thereon. Learned counsel very fairly submitted that there is no denial to the specific statements made in paragraphs 37 to 55 of the writ application, in the counter-affidavit, in view of the fact that the entire order-sheet has been brought on record, which speaks for itself, and no useful purpose was going to be served by making any comment thereon. The further submission of the learned counsel for the State is that the goods in question can be said to be capital goods only after the amendment made in the JVAT Act on 06.03.2007, on which date, the earth moving machineries, such as ''Excavator Hydraulic Excavators clampshell, Drojline, Rock Breakers, Mini Excavators, Crawler, Cranes, Wheeled Cranes, Wheel-loaders, Front end loaders, Shovels, Breakhoc and Articulated Cranes and all other similar implements and machineries'' have been brought in Schedule-II, Part-B, Entry-25 to the JVAT Act. It is submitted by learned counsel that initially, only ''capital goods'' was mentioned in that entry, without specifying the machineries as indicated above. 13. Learned counsel for the State has submitted that accordingly, for the period 01.04.2006 till 05.03.2007, the goods in question could not be treated as the capital goods and the petitioner Company was liable to pay VAT @ 12.5 % and not @ 4%, as claimed by the petitioner. Though learned counsel has justified the order dated 16.02.2015 passed by the Assessing Authority on merits, but so far as the allegation of the ante-dating of the order and to have passed the order after the period of limitation is concerned, learned counsel has very wisely left it upon the Court to decide the matter on the basis of the record. 14. Learned counsel for the State has also raised a preliminary objection regarding the maintainability of the writ application, submitting that against the order passed by the Commissioner, Commercial Taxes, revision is maintainable before the Commercial Taxes Tribunal, which alternative remedy the petitioner Company has not availed. 15. Having heard learned counsels for both the sides and upon going through the record, we find that there is specific averment in the writ application that the order dated 16.02.2015 was passed beyond the period of limitation of two years by making the order ante-dated. The period of limitation is prescribed under Section 42(2) of the JVAT Act, which reads as follows:- "42. The period of limitation is prescribed under Section 42(2) of the JVAT Act, which reads as follows:- "42. Power of Reassessment in certain cases.- (2) Where any Court or Tribunal passes an order in appeal or revision to the effect that any tax assessed under this Act or the Central Sales Tax Act, 1956 should have been assessed under the provision of a law other than that under which it was assessed, then in consequence of such order or to give effect to any finding or direction contained in such order such turnover and part thereof, may be assessed or reassessed, as the case may be, to a tax at any time within two years from the date of such order, notwithstanding any limitation period which would otherwise be applicable to, the assessment or reassessment made." 16. The aforesaid provision clearly shows that when the matter was remanded to the Assessing Authority by order dated 19.02.2013, as contained in Annexure-7 to the writ application, the re-assessment order had to be passed on or before 19.02.2015. In the present case, the re-assessment order has been shown to have been passed on 16.02.2015. The order-sheet brought on record as Annexure-8, however, shows that for the first time on 08.01.2015 the Assessing Authority woke out of the slumber, and started the re-assessment proceeding, recording the receiving of remand order and fixing the date for hearing on 27.01.2015. On 27.01.2015 the matter was heard in part, and the next date of hearing was fixed on 14.02.2015. As stated earlier, the next order in the order-sheet is of the order dated 14.02.2015/16.02.2015, on which it is shown that the matter was heard and the detailed order has been passed separately. The petitioner Company claims that this hearing was never made by the Assessing Authority. 17. We also find force in the claim of the petitioner Company, inasmuch as, if by order dated 27.01.2015 the matter was fixed for 14.02.2015, there was no occasion for showing the next date of hearing as 14.02.2015/16.02.2015. This could have been done only in the event that 14.02.2015 was a non-working day for some reason, and thereafter the first working day was 16.02.2015, which is not the case here and neither stated in the order-sheet. This could have been done only in the event that 14.02.2015 was a non-working day for some reason, and thereafter the first working day was 16.02.2015, which is not the case here and neither stated in the order-sheet. If the matter was heard on 14.02.2015, there is nothing on record to show that it had been heard on that date, and if it was actually heard on 16.02.2015, there is nothing on record to show that the matter was ever fixed for hearing on 16.02.2015. In that view of the matter, we cannot, but accept the plea of the learned counsel for the petitioner that this is an ante-dated order to cover up the period of limitation, which fact has not been specifically denied even in the counter-affidavit filed on behalf of the State, though specifically averred in paragraphs 37 to 55 of the writ application. 18. The subsequent events shown on the record, also supports the case of the petitioner, as though on several dates, i.e., on 20.03.2015, 17.06.2015, 21.09.2015, 10.01.2016, 12.04.2016 and 28.06.2016, it has been shown that the demand notice could not be served upon the petitioner for one reason or the other, mainly being the fact that the process server could not meet the representative of the Company, and the demand notice had been shown to be served upon the petitioners advocate on 02.08.2016 only, i.e., after the lapse of more than 17 months from the alleged date of passing of the re-assessment order. If the demand notice had to be served on the learned counsel for the petitioner Company, it could have been done much earlier and well within time, or even by other processes, such as through registered notice or e-mail to the petitioner Company, which has not been done in the present case. There is also no denial to the fact that the counsel to whom the demand notice was served on 02.08.2016, was the retained counsel of the petitioner Company for the last ten years and was regularly attending the office of the Assessing Authority in connection with other matters of the Company. There is also no denial to the fact that the counsel to whom the demand notice was served on 02.08.2016, was the retained counsel of the petitioner Company for the last ten years and was regularly attending the office of the Assessing Authority in connection with other matters of the Company. In that view of the matter, we have no alternative but to accept the contention of the learned counsel for the petitioner that the impugned order dated 16.02.2015 passed by the Assessing Authority, as contained in Annexure-11 of the writ application, is nothing but an order passed beyond the period of limitation, but an ante-dated order, shown to have been passed within the period of limitation. Accordingly, this order is void ab initio , and cannot be sustained on this ground alone and is fit to be quashed. 19. The contention of the learned counsel for the State that the goods in question were not the capital goods prior to 06.03.2007, is not prima facie acceptable to us. After 06.03.2007, there is specific entry in Schedule-II, Part-B, Entry-25 to the Act, which gives the description of the capital goods liable to tax @ 4% and this includes ''Such as Excavator Hydraulic Excavators clampshell, Drojline, Rock Breakers, Mini Excavators, Crawler, Cranes, Wheeled Cranes, Wheel-loaders, Front end loaders, Shovels, Breakhoc & Articulated Cranes and all other similar implements and machineries in this category.''. 20. Initially only the words ''capital goods'' were there in entry-25 of the said schedule. The word ''capital goods'' have been defined under Section 2(x) of the JVAT Act , which reads as under:- "2(x) ''Capital goods'' means plant, machinery, equipment, apparatus, tools, appliances or electrical installation, Pollution /Quality Control Equipments, used in the process of manufacturing, processing of goods for sale or in the mining, provided such purchases are capitalized for their purposes excluding goods mentioned in negative list as in Appendix-I." A plain reading of this definition shows that capital goods includes, machinery, equipment, apparatus, tools, appliances, also used for mining purposes, and prima facie it appears that the goods in question in the present case, i.e., excavators, cranes and its spare parts which are the earth moving machineries, would come within the expression machinery, equipment, apparatus, tools and appliances, used for the mining purposes. 21. 21. In that view of the matter, prima facie we are not agreeable to the submission of the learned counsel for the State that prior to 06.03.2007, the goods in question were carrying the tax liability @12.5%. However, we are refraining ourselves from giving any positive finding in this regard, as we do not propose to enter into the merits of the case, and we leave this question to be decided in any other appropriate case, if such occasion arises. 22. In view of the aforementioned discussions, we find that the impugned order dated 16.02.2015 passed by the Assessing Authority cannot be sustained in the eyes of law being void ab initio . Consequently, the revisional order dated 04.10.2018 passed by the Revisional Authority also, cannot be sustained in the eyes of law. 23. We do not find any force in the preliminary objection raised by the learned counsel for the State that the writ application is not maintainable as alternative remedy is available to the petitioner. In view of our finding that that the impugned order dated 16.02.2015 passed by the Assessing Authority is void ab initio , such orders could well be challenged in the Writ Court, without availing any alternative remedy, either the appellate or the revisional. 24. Accordingly, both the aforesaid impugned orders as contained in Annexures-11 and 13 respectively, to the writ application, are hereby, quashed. 25. It goes without saying that if any extra amount has been levied as VAT from the petitioner Company beyond 4% of the tax liability, the same shall be refunded to the petitioner Company with statutory interest thereon, or shall be adjusted to the future liabilities of tax of the petitioner Company. 26. We are constrained to record our deep sense of dissatisfaction in the manner in which the Assessing Authority has functioned in this matter. We have not entered into the merits of the case only because of the fact that the order passed by the Assessing Authority clearly shows that it had been passed beyond the period of limitation and was ante-dated in order to bring it within the period of limitation. Such action of the Assessing Authority has not only put the State Exchequer, may be, to a great loss, but has also invited bad names to the State and tarnished its image. Such action of the Assessing Authority has not only put the State Exchequer, may be, to a great loss, but has also invited bad names to the State and tarnished its image. However, it is for the higher officials of State to take appropriate action against the erring officials, if they are so advised. We direct the learned counsel for the State to bring our concern to the notice of the Chief Secretary of the State, or the appropriate higher authorities of the State, for the needful action, if any. 27. This Writ Application is accordingly, allowed with the directions and observations as above. Consequently, the pending Interlocutory Applications also stand disposed of.