2014 Supreme(Pat) 316

IN THE HIGH COURT OF JUDICATURE AT PATNA
I.A. ANSARI, SAMARENDRA PRATAP SINGH, JJ.
M/s Premier Irrigation Adriteck Private Limited – Petitioner
Versus
The State Of Bihar through the Principle Secretary-cum-Commissioner of Commercial Taxes, Bihar, Patna & Ors. – Respondents
Civil Writ Jurisdiction Case Nos. 1271 & 1272 of 2014
Decided on: 26-03-2014

The provisions of assessment under Section 17(5) of Bihar Finance Act, 1981, are substantially para materia with Section 28 of Bihar VAT Act, 2005.

Headnote:

BIHAR ENTRY TAX ACT, 1993 - Section 8 - Applicability of the provisions of the Bihar Finance Act, 1981(Bihar Act 5, 1981) and Rules made thereunder - Assessment of tax of dealers evading registration - Section 28 of the Bihar VAT Act, 2005 - Relevant provisions of assessment under Section 17 of the Bihar Finance Act, 1981, are substantially para materia with Section 28 of Bihar VAT Act, 2005 - Section 8 of the Bihar Entry Tax Act, 1993, has incorporated the provisions of assessment under Bihar Finance Act, 1981 - Section 8 of Bihar Entry Tax Act, 1993, is workable - Mere change of opinion, on same set of facts and materials, would not constitute “information” for the purposes of reassessment - Sprinkler set is not a scheduled item under Bihar Entry Tax Act, 1993 - HDPE Pipes is a scheduled item liable to assessment of entry tax - Entry tax subsequently levied on the taxable item under Bihar Entry tax Act, 1993, can be reduced to the extent of tax paid under Bihar VAT Act, 2005 - Respondents have adequate power to impose civil penalty or penalty simplicitor if a dealer has not got himself registered under Bihar Entry tax Act, 1993, and failed to pay entry tax on import of scheduled item - Penalty, imposed by respondent no.2, is not sustainable in the eyes of law.

Fact of the Case:

The petitioner is a manufacturer of Sprinkler Set and Drip Irrigation Set having its office in different parts of the country with its factory, at Nagpur, in the State of Maharashtra. According to the petitioner, the Sprinkler set consists of various essential parts and accessories, namely, HDPE pipes, Bim Connecting Nipple, Bend, Tee, End Cap, ISC Sprinkler Nozzle and Riser Pipe, etc. All these items constitute a complete set of Sprinkler Irrigation System for agricultural use. A copy of brochure of Sprinkler Set is at Annexure-1 in both, C.W.J.C. Nos. 1271 and 1272 of 2014. Different models of Sprinkler System are transferred from petitioner’s factory, situated at Nagpur and from other branches of the country, to Patna for sale in Bihar by way of “Stock Transfer”. The Sprinkler Set is, then, sold to consumer, and VAT @ 4 per cent is charged on it after raising tax invoice.

Finding of the Court:

The petitioner, at best, can be held to be negligent; but its act was not actuated by any ulterior motive to avoid payment of entry tax as well as registration under Section 5 of the Bihar Entry Tax Act, 1993. Thus, the order, imposing penalty, is not sustainable in law and is, accordingly, set aside.

Issues: 1. Whether a writ application is maintainable if an alternative remedy is provided under the enactment? 2. Whether the provisions of Section 8 of the Bihar Entry Tax Act, 1993, with respect to assessment, is workable? 3. Whether mere change of opinion, on same set of facts and materials, would constitute “information” for the purpose of reassessment? 4. Whether the article, in dispute, was scheduled item under Bihar Entry Tax Act, 1993? 5. Whether the entry tax, subsequently levied on the item, would be reduced to the extent of tax paid under the Bihar VAT Act, 2005? 6. Whether the respondents have adequate power to impose civil penalty or penalty simplicitor if the dealer has not got himself registered under the Bihar Entry tax Act, 1993, and failed to pay entry tax on import of scheduled item? 7. Whether the penalty, imposed by respondent no.2, is sustainable in the eyes of law?

Ratio Decidendi: 1. The power, under Article 226 of the Constitution of India, is of very wide amplitude and the restriction, imposed by Courts, is one of self-imposed restrictions. Recourse to writ jurisdiction would not, ordinarily, be permitted if the exercise of such power is barred under an enactment. Alternative remedies, under a Statute, would not bar jurisdiction of Courts to entertain writ applications, under Article 226 or 227 of the Constitution of India, if vires of an enactment is challenged or where the order impugned is wholly without jurisdiction. 2. If the provisions of one statute are incorporated by reference in a second statute and the earlier statute is repealed, the second statute would continue to remain in force with the incorporated provisions, because the repealed statue would be treated as being in force as part of the subsequent statute. 3. Having second thoughts or a mere change of opinion by the prescribed authority on the same set of facts and materials on the record would not constitute “information” under section 18(1) of the Act for the purposes of reassessment. 4. Sprinkler set is not a scheduled item under Bihar Entry Tax Act, 1993. 5. HDPE Pipes is a scheduled item liable to assessment of entry tax. 6. Entry tax subsequently levied on the taxable item under Bihar Entry tax Act, 1993, can be reduced to the extent of tax paid under Bihar VAT Act, 2005. 7. Respondents have adequate power to impose civil penalty or penalty simplicitor if a dealer has not got himself registered under Bihar Entry tax Act, 1993, and failed to pay entry tax on import of scheduled item.

Final Decision: These writ application stands disposed of in terms of the directions given above.