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2020 Supreme(Jhk) 297
IN THE HIGH COURT OF JHARKHAND AT RANCHI
H.C. Mishra, Deepak Roshan, JJ.
Tata Hitachi Construction Machinery Company Pvt. Ltd. - Appellant
Versus
State Of Jharkhand & Ors. - Respondent
W.P. (T) No. 18 of 2019 With I.A. Nos. 21 and 6815 of 2019
Decided On : 25-02-2020
M/s.Sumeet Gadodia, Adv, for the Appellant; M/s. Atanu Banerjee, Sr. S.C.-III Miss Pooja Kumari, A.C. to Sr. S.C.-III, for the Respondent
The re-assessment order passed beyond the period of limitation and ante-dated was deemed void ab initio, and the definition of capital goods under the JVAT Act was considered to include the goods in question.
Headnote:
JVAT Act - Assessment of VAT liability for sale of capital goods - Section 42(2) - The court found that the re-assessment order was passed beyond the period of limitation and was ante-dated to cover up the delay, making it void ab initio. The court also discussed the definition of capital goods under Section 2(x) of the JVAT Act and concluded that the goods in question could prima facie be considered as capital goods. The impugned orders were quashed, and the court directed refund or adjustment of any extra VAT levied on the petitioner Company.
Fact of the Case:
The petitioner Company, a manufacturer of excavators and cranes, challenged the assessment of VAT liability at 12.5% instead of the claimed 4% for the assessment year 2006-2007. The petitioner alleged that the re-assessment order was ante-dated to cover up the delay and passed beyond the period of limitation.
Finding of the Court:
The court found that the re-assessment order was passed beyond the period of limitation and was ante-dated, making it void ab initio. The court also prima facie accepted that the goods in question could be considered as capital goods. The impugned orders were quashed, and refund or adjustment of any extra VAT levied on the petitioner Company was directed.
Issues: 1. Validity of the re-assessment order passed beyond the period of limitation. 2. Classification of the goods as capital goods for VAT liability.
Ratio Decidendi: The re-assessment order passed beyond the period of limitation and ante-dated was deemed void ab initio. The definition of capital goods under Section 2(x) of the JVAT Act was considered to prima facie include the goods in question.
Final Decision: The impugned orders were quashed, and refund or adjustment of any extra VAT levied on the petitioner Company was directed. The court expressed dissatisfaction with the functioning of the Assessing Authority and directed the State to take appropriate action against the erring officials.
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 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. It is only
