- (1.) The order passed under Section 46 of the West Bengal Value Added Tax Act, 2003 by the Deputy Commissioner, Sales Tax, Parkstreet Charge, the respondent no.1 herein is a subject matter of this writ petition.
(2.) Although the relief claimed in the writ petition concerns the quashing and setting aside of the assessment order dated 16th August, 2012 passed by the respondent no.1 but the petitioner restricts its challenge on the ground of non-affording the opportunity of hearing which could be culled out from the averments made in Paragraph 3 of the writ petition; experts of which is reproduced below: "3. The petitioners are, therefore, in the present Writ Petition, not raising any ground, submission or contention whatsoever with regard to the merits of the impugned order even though the Petitioner is in a position to demonstrate and establish, beyond a shadow of doubt, that the impugned assessment order made by the assessing officer is patently erroneous and contrary to law. The petitioners are, in the present writ petition, specifically confining himself only to the basic and fundamental jurisdictional issue whether the assessing officer could create such legally untenable demand without following even a semblance of due process of law and create tax liabilities when no such liability could be created had he given a chance to the petitioner to make submissions in defence of the presumptions raised by the Respondent No.1 to bring turnovers to tax that he could not in view of the settled lawmore so the sale in the course of import and interstate sales effected by the petition as per law. The facts leading to this Civil Writ Petitioner are as follows: * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * X) The petitioners are, therefore, through this Writ petition, challenging the order of assessing authority, predominantly on the ground that the Ld. Dy Commissioner framed the assessment in gross violation of principles of natural justice, when he failed to give any pre-assessment show cause notice to the petitioner showing the basis on which the turnovers mentioned therein were sought to be taxed and that, as a result, the petitioner has been denied an opportunity of effectively putting forward its defense. The petitioner says and submits that in the absence of such a show cause notice, the petitioner could neither submit an effective reply to the Assessing Authority nor place the documentary evidence necessary to establish that the said turnover was not liable to any tax under the provisions of West Bengal VAT Act. In short, the petitioner says and submits that the whole issue was pre-judged by the Ld. Dy. CST and the petitioner has been subjected to this illegal tax demand without being heard. XI) The unilateral actions on the part of the assessing authority have caused tremendous prejudice to the Petitioner who has been dragged into this onerous litigation for no fault of his. The assessing officer grossly and flagrantly flouted the due process of law: (a) By not giving effective opportunity of being heard to the petitioner. (b) By not disclosing his basis that he intended to adopt to create such illegal demands against the petitioner i.e. his intention to treat the divisible contracts as turnkey or indivisible contract. (c) By not informing the petitioner about the BOI Report dated 23.6.12 or by not letting the Petitioner inspect the same or by not giving a copy of the same and seeking defense of the Petitioner to the findings that are contained in the BOI Report. (d) By not following the statutory procedure that require notice to be given to the petitioner as per provisions Section 46 and Rule 57 of WB VAT Act and Rules. (e) By not confronting the petitioner about the two judgments that he heavily relied in the assessment order and which, it is respectfully submitted, are not relevant as the factual and legal matrix in those judgments are totally at variance with the facts of the case."
(3.) The genesis of the said assessment order as deduced from the facts pleaded in the writ petition originates from the contracts awarded by the Damodar Valley Corporation for supply of plant and machinery from abroad, supply of equipments form various domestic sources by transferring the property by way of interstate sale and rendition of such certain services by way of installation, commission and testing of the plants and equipments at Raghunathpur within the State of West Bengal. Indisputably three contract agreements of the even date were entered into between the petitioner and the said Damodar Valley Corporation and the petitioner successfully performed its obligation under the aforesaid contracts. The Bureau of Investigation ( hereinafter referred to as BOI) seize some of the books of the petitioner pertaining to the Financial year 2009-2010 and asked the petitioner to appear before the investigating officer. The petitioner submitted its written submission and took a defence that no work contract activity was undertaken within the State and pleads no liability to pay tax under the Vat Act. The petitioner further stated that the entire work was entrusted upon the sub-contractors and, therefore, there is no liability foisted upon the petitioner for payment of the tax under the Vat Act.;