- (1.) HEARD learned counsel for the parties.
(2.) THE petitioner is challenging the show cause notice dated 6.3.2013, Annexure - 7, whereby the petitioner was served with the notice as to why penalty under section 40(2) of the Jharkhand Value Added Tax Act, 2005 be not imposed. It appears from the facts of this case as well as from the arguments of the learned counsel for the petitioner that initially proceedings were initiated against the petitioner, which, according to the petitioner, were dropped, vide order dated 2.2.2013 and thereafter petitioner was served with a notice under section 40 of the Act, copy of which has been placed on record as Annexure - 2, fixing a date as 1.3.13 and in response to the said notice, petitioner submitted its objections to the notice, copy of which has been placed on record as Annexure - 4 and thereafter petitioner was served with yet another notice purported to be under section 40(2), which is dated 2.3.2013, copy of which has been placed on record as Annexure - 5. The first paragraph of this notice, Annexure - 5, which is typed in English, is purported to be under section 40 of the Act and in the second part of this notice, specific facts have been mentioned incorporating reasons for issuance of notice under section 40(2) of the Act. By this notice, Annexure - 5, dated 2.3.2013, a date was fixed as 6.3.2013. Against this notice, objections were submitted by the petitioner specifically under section 40(1) as well as under section40(2) of the Act of 2005, copy of which is placed on record as Annexure - 6. Then it appears that the Revenue issued notice, Annexure - 7, which is dated 6.3.13. In this subsequently issued notice, first part of the notice, Annexure - 5 dated 2.3.2013, has been scored out and therefore, this notice, Annexure - 7, remained as notice under section 40(2) of the Act of 2005, which is sought to be challenged. Learned counsel for the petitioner submitted that once the proceedings have been dropped and when there is no assessment, no question of reassessment under section 40 of the Act can arise. It is also submitted that under section 40(2), no penalty can be imposed, which is apparent from section 40(2) of the Act of 2005 and therefore, the condition precedent is not satisfied for issuance of notice.
(3.) LEARNED counsel for the petitioner heavily relied upon the judgment of Division Bench of the Patna High Court delivered in the case of M/s. Shri Durga Industries Vs. State of Bihar & Another reported in 1985 BRLJ 7 and also relied upon the judgment of Hon'ble Supreme Court delivered in the case of Siemens Ltd. Vs. State of Maharashtra & Others reported in (2006) 12 SCC 33. It appears from the judgment delivered in the case of M/s. Shri Durga Industries that in that writ petition, assessment order was challenged, wherein there was finding recorded in favour of the assessee and on the basis of that finding recorded by the assessing authority itself, the Division Bench held that nothing was concealed from the return by the petitioner of that case and then the Division Bench observed that instead of disagreeing with the return and proceeding with the assessment, treating that as a concealment, the fine has been imposed. In the facts, levying fine was found to be absolutely illegal and arbitrary to the finding recorded by the assessing authority, which was not disagreed by the higher authority. Be that as it may, that was the case of challenge to the assessment order, where penalty had been imposed. The said judgment has, thus, no application to the facts of the instant case because in this case, no assessment order imposing penalty has been passed.;