M.Y.EQBAL, J. - (1.) IN these applications under Article 226 of the Constitution of India, the petitioner - M/s. Bharat Coking Coal Limited seeks a direction upon the respondents to issue a demand notice showing excess payment of advance sales tax and central sales tax paid by the petitioner according to returns for the year 1986 -87 so that the petitioner can make an application for refund of the said amount in the prescribed form and further for a direction for refund of the excess amount in view of the fact that the original assessment order dated 30.11.1990 has been set aside by the appellate authority.
(2.) THE petitioner -unit is registered under the Bihar Finance Act, 1981 and has been filing returns under the said Act and also under the Central Sales Tax Act, 1956 before the Commercial Taxes Authority, Sindri Circle, Jharia. In compliance to the notice issued for assessment for the year 1986 -87, the representative of the petitioner appeared before the Assessing Authority who passed an order of assessment dated 30.11.1990 and served demand notice upon the petitioner showing huge demand of tax. Being aggrieved by the said assessment order, the petitioner preferred appeal before the Joint Commissioner of Commercial Taxes (Appeals), Dhanbad being SD ST -12/90 -91 who after hearing the parties set aside the assessment order and remanded the matter back to the Assessing Authority for passing a fresh order of re -assessment in the light of the directions and observations made in the said order. It is stated by the -petitioner that the appellate order dated 29.4.1992 was communicated to the petitioner as well as the Assessing Officer and in pursuant to the appellate order of remand, it was incumbent upon the assessing authority to initiate re -assessment and complete it before the expiry of two years within the date of communication of the aforesaid appellate order. In pursuant to the directions issued by the appellate authority the assessing authority directed the petitioner to appear with complete books of accounts for the year 1986 -87. The petitioner's case is that hearing of the case was adjourned time to time and several dates were fixed, but no reassessment order has been passed till date, although the same should have been passed before the expiry of two years from the date of communication of the appellate order. The petitioner's further case is that, for non -passing of re -assessment order within two years from the date of communication of the appellate order, the entire payment made by the petitioner for the years 1986 -87 is refundable to the petitioner. Further case of the petitioner is that the Assessing Officer instead of issuing demand notice showing excess payment or giving refund of the same, issued several notices dated 4.5.2001, 30.7.2001 and 17.9.2001 directing the petitioner to produce the various documents for the purpose of passing reassessment order. It is stated by the petitioner that in compliance of the said notices, the petitioner stated that as per express provision of Section 24 of the Act, no re -assessment order could be passed at that stage. The contention of the petitioner is that the petitioner is entitled for the refund of the entire advance/admitted tax amounting to Rs. 25,90,987/ -, and Rs. 99,41,375.10 being the central sales tax since there has been no determination of the tax payable by the petitioner by Assessing Officer by passing re -assessment order. In the counter affidavit filed by the respondents, it is stated that the petitioner is not entitled to claim any amount which was paid by it according to returns filed by the petitioner because the amount paid is not an advance tax, but it is a tax which was realized from the customer at the time of sale and it is an admitted tax paid by the petitioner. The respondents' case is that after remand of the case by the appellate Court, date was fixed for re -hearing within the limitation period of two years, but the petitioner failed to cooperate with the Department for re -assessment and as such, the petitioner is not entitled to any relief whatsoever. It is stated that the petitioner has realized tax during the relevant period to the tune of Rs. 36,25,885.10 which has been admitted in the returns filed by the petitioner and has not been challenged, but out of the said amount of tax collected by the petitioner, only Rs. 25,90,987/ - has been paid which cannot be refunded to it in any circumstances whatsoever. Similarly the petitioner realized central sales tax to the tune of Rs. 74,44,369.86 which has been admitted in the return filed by the petitioner. In no case the said amount is refundable to the petitioner. The respondents' further case is that the building in which the office of the Deputy Commissioner of Commercial Taxes was located, caught fire and the whole records burnt to ashes. Therefore, notices were issued to the parties to come with the records lying with them so that the office records can be reconstructed, but in the present case, the petitioner treated those notices as notice of rehearing of remand proceeding for reassessment which is totally false and concocted.
(3.) WE have heard Mr. Binod Poddar, learned Counsel appearing for the petitioner -assessee and Mr. K.K. Jhunjhunwala appearing for the Revenue.;