ORDER :

1. In this writ petition, filed under Article 226 of the Constitution of India, the petitioner has prayed for declaring the Explanation 1 to Section 19 of the Jharkhand Value Added Tax Act, 2005 as inserted vide Jharkhand Act No. 22 of 2011, i.e. Jharkhand Value Added Tax (Amendment) Act 2011 as ultra vires. Petitioner has also prayed that the amendment carried to Section 19 of the Jharkhand Value Added Tax Act, 2005, as inserted vide Jharkhand Value Added Tax (Amendment) Act 2016, as contained in Notification No. L.G. 06/2017-44/Leg. dated 31st March, 2017 be also declared ultra vires. By virtue of the said amendment, the accrued Input Tax Credit of the petitioner stood forfeited.

An alternative prayer has been made to the aforesaid two prayers. As per the alternative prayer, petitioner prayed for declaring that the amount of Rs.21,65,133/-which is admittedly the Input Tax Credit accrued in favour of the petitioner for the assessment year 2010-2011 be not treated to be forfeited and be carried forward to the next assessment year 2011-12. Petitioner has prayed that even if the amendment is not declared to be ultra vires, the credit which has already accrued, cannot be taken away or forfeited.

Further prayer has been made to quash the assessment order dated 06.05.2017 passed by the respondents on remand, wherein the excess amount of Input Tax Credit brought forward in favour of the petitioner amounting to Rs.21,65,133/-from the financial year 2010-11 to the financial year 2011-12, has been forfeited.

2. Learned counsel appearing on behalf of the petitioner submits that admittedly, the petitioner purchased raw materials for manufacturing finished products and was having excess Input Tax Credit (hereinafter referred to as ITC) to the tune of Rs.21,65,133/-. Section 19 of the Jharkhand Value Added Tax provides for carrying forward the excess ITC to the next financial year. As the electricity connection of the petitioner was disconnected due to some dispute and allegation of theft of energy, the production of the unit of the petitioner was ‘NIL’ from 26.08.2010 to 03.12.2022. The petitioner filed ‘NIL’ returns for the period 2011-12, but the excess ITC was carried forward from the assessment year 2010-11 to 2011-12 and was further carried over to the next financial year, i.e. 2012-13. As per him, Section 19 of the Jharkhand Value Added Tax Act 2005 was amended and an explanation was inserted, which provided that no ITC shall be admissible to registered dealer, where his turn over is ‘NIL’ for 3 (three) consecutive months. In view of the said amendment, the petitioner was denied the benefit of carrying forward of excess ITC. As per him, the aforesaid amendment is bad and is against the provisions of the parent Act thus, is ultra vires. Further, by another amendment, the period of 3 (three) months was substituted by 12 months and the amendment was made effective from 7th May, 2011.

As per him, the provision of retrospectivity is bad, which in fact took away the benefit already granted. In the alternative, he argues that since the amendment was brought after the benefit had accrued to the petitioner, the said amendment cannot take away the benefit, which has already crystalised. The petitioner had earlier challenged the initial amendment, which had given retrospective effect with effect from 01.04.2010, in W.P.(T) No. 2911 of 2015 Since the subsequent amendment extending the period of 3 (three) months to 12 (twelve) months and withdrawing the retrospective effect was passed during pendency of the said writ petition, the writ petition was disposed of with a direction to the respondents, i.e. Assessing Authority to pass an appropriate order after setting aside the assessment order dated 29.12.2014. On remand, similar order was passed, which is also illegal. As per him, when the retrospectivity has been done away with, the respondents could not have passed the impugned order forfeiting the ITC for the year 2010-11, which accrued on 31