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2014 Supreme(Jhk) 297
IN THE HIGH COURT OF JHARKHAND AT RANCHI
R. Banumathi, Shree Chandrashekhar, JJ.
M/s. Padam Kumar Jain - Appellant
Versus
Union of India & Ors. - Respondents
W. P. (T) No. 1614, 1612 and 1613 of 2013
Decided On: 25.02.2014
Advocate Appeared:
For the Appellant:Mr. Ananda Sen, Advocate
For the Union of India: Mr. Md. Mokhtar Khan, ASGI
For the State: Mr. Ajit Kumar, AAG.
Headnote:a) Jharkhand Value Added Tax Act, 2005 – Section 35(7) and 40(2) – Assessment in a pending proceeding for regular assessment u/s 35(7) – Direction by Assessing authority to pay interest– Use of words “is” or “may be” in section 40(2) – No fresh notice to assessee required. (Para 13, 19)
(2004) 10 SCC 201; (2011) 2 SCC 344; (1994) 2 SCC 534 – Relied upon
(b) Administration of Justice – Order not referring the provision or wrong mentioning of provision – Does not vitiate the order, so long it is reasoned. (Para 21)
(c) Administration of Justice – Natural Justice – Sufficient opportunity afforded to assesee, as borne out from material on record – No violation of principles of natural justice. (Para 23)
(d) Constitution of India – Article 226 r/w sections 79, 80 and 80 Jharkhand Value Added Tax Act, 2005 – Provisions of appeal, revision and review existing in the Act – Assessee approaching High Court without disclosing any reason for not availing statutory remedy under the Act – Writ petition held not maintainable. (Para 24, 28)
AIR 1983 SC 603; AIR 1985 SC 330 – Relied upon
(1998) 1 SCC 1; (1985) 1 SCC 260; (2010) 8 SCC 110 – Referred
R. Banumathi, C.J. and Shree Chandrashekhar, J. - The assessee namely M/s. Padam Kumar Jain has filed W. P. (T) No. 1614 of 2013 with respect to demand raised for the assessment year 201112, W. P. (T) No. 1612 of 2013 with respect to demand raised for the assessment year 201011 and W. P. (T)No. 1613 of 2013 with respect to demand raised for the assessment year 200910. Since a common question of law has been raised in all the three writ petitions, they were heard together and are disposed of by a common order.
2. In these writ petitions, the petitioner-assessee has challenged the vires of Rule 64D of the Mineral Consession Rules, 1960 and has sought quashing of orders dated 31.01.2013 passed separately for the different assessment years.
3. Though, in the writ petitions, notification dated 10.12.2009 has been challenged and a declaration has been sought that the Central Government by virtue of substitution of Rules 64D of the Mineral Concessions Rules, 1960 has got no authority to fix sale price of Iron Ore which is a decontrolled item, the learned counsel for the petitioner during the course of argument submitted that the petitioner is not pressing those prayers at this stage and he confined his argument only to the question of violation of the principles of natural justice and prayed for remand of the matter to the Assessing Authority for a fresh decision in the matter.
W. P. (T) No. 1614 of 2013
4. By order dated 05.06.2012, the assessee was directed to appear for verification of the data received from the Mining Department, Chaibasa. Thereafter, the case was fixed on 27.06.2012, 10.10.2012, 17.10.2012, 19.10.2012 and 28.01.2013. On 31.01.2013, the time petition filed by the assessee was rejected and the Assessing Officer proceeded to calculate tax and interest on the concealed sale price. By order dated 31.01.2013, an amount of Rs. 11,54,29,178.03/ as tax and Rs. 10,25,78,370.86/ as interest, totalling Rs. 21,80,07,548.89/ for assessment year 201112 was calculated which the assessee was directed to pay by 16.02.2013.
W. P. (T) No. 1612 of 2013
5. On 05.06.2012, a notice was issued to the assessee for producing record and thereafter, the case was fixed on 13.06.2012, 27.06.2012, 20.07.2012 and 28.01.2013. On 31.01.2013, the time petition filed by the assessee was rejected and the Assessing Officer proceeded to calculate tax and interest on the concealed sale price. By order dated 31.01.2013, an amount of Rs. 10,48,70,269.30/ as tax and Rs. 11,97,72,500.77/- as interest, totalling Rs. 22,46,42,770.07 for assessment year 201011 was calculated which the assessee was directed to pay by 16.02.2013.
W. P. (T) No. 1613 of 2013
6. On 24.05.2011, a notice was issued to the assessee for producing record and thereafter, the case was fixed on 10.01.2012, 15.02.2012, 25.05.2012, 13.06.2012, 27.06.2012, 06.11.2012 and 28.01.2013. On 31.01.2013, the time petition filed by the assessee was rejected and the Assessing Officer proceeded to calculate tax and interest on the concealed sale price. By order dated 31.01.2013, an amount of Rs. 1,96,56,611.85/- as tax and Rs. 2,59,86,358.63/- as interest, totalling Rs. 4,56,42,970.48 for assessment year 200910 was calculated which the assessee was directed to pay by 16.02.2013.
7. We have heard Mr. Ananda Sen, learned counsel appearing for the petitioner and Mr. Ajit Kumar, learned Additional Advocate-General appearing for the respondent-State and perused the documents on record.
8. Mr. Ananda Sen, the learned counsel for the assessee has submitted that, there is a special procedure prescribed under Section 35 of the Jharkhand Value Added Tax Act, 2005 for assessment of the amount of tax due from a registered dealer or a dealer liable to be registered under the Act. Subsection (1) to (5) of Section 35 deals with assessment and self-assessment of the amount of tax whereas, Subsection (7) of Section 35 provides that if the prescribed authority is satisfied that goods have been sold at a price higher than
