D.N.PATEL,RATNAKER BHENGRA,JJ. - (1.) This writ petition has been preferred challenging the order passed by the Joint Commissioner, Commercial Taxes ( Administration), Dhanbad Division, Dhanbad dated 11.12.2007 which is at Annexure6 to the memo of this writ petition as well as the very initiation of the proceeding at the behest of the Joint Commissioner, Commercial Taxes (Administration), Dhanbad Division, Dhanbad dated 14.10.2006 is also under challenge (Annexure4 to the memo of this writ petition) mainly on the ground that Assessing Officer has already passed an order on 08.09.2003 which is at Annexure 1 and 1/1 to the memo of this writ petition for the period 20012002.
(2.) It is submitted by learned counsel for the petitioner that this petitioner is selling hard coke as a "Counter sale". Purchaser has to come at the place of this petitioner where the goods are being sold and after purchasing the goods the counter comes to an end. The sale also comes to an end. Subsequent movement of the goods has nothing to do with the same. It is submitted by learned counsel for the petitioner that the goods are being sold within the State of Jharkhand. This explanation has been given to the Joint Commissioner of Commercial Taxes (Administration), Dhanbad Division, Dhanbad. After receiving an order dated 14 th October, 2006 (Annexure4), the reply given by this petitioner is at Annexure5 which is dated 28.12.2006 in which it has been clearly stated that the movement of the goods from one State to another has nothing to do with the sale of the goods. The sale of the hard coke is nothing but the "Counter Sale" i.e. sale at the business premises of this petitioner. The goods have been moved from one place to another at the desire of the purchasers and the same has not occasioned due to sale. In fact, the burden of proof is upon the State when the movement of goods from one State to another is because of the sale of the goods. It is further submitted by counsel for the petitioner that assuming without admitting that order passed by the Joint Commissioner, Commercial Taxes (Administration), Dhanbad Division, Dhanbad dated 11.12.2007 is correct then also Assessing Officer has not passed an order within a period of two years from the communication of the order passed by the Revisional Authority. This time limit is given in Section 24 of the Bihar Finance Act, 1981 and, now in the year 2016 no such order can be passed by the Assessing Officer and more particularly when there is no stay granted by this Court in this Writ Petition and, hence, also no effect can be given to the order passed by the Joint Commissioner, Commercial Taxes (Administration), Dhanbad Division, Dhanbad.
(3.) Learned counsel for the respondentState has submitted that movement of the goods has occasioned immediately after the sale of the hard coke which is presumed to have been occasioned because of the same. Looking to Section 3 of the Central Sales Tax, 1956, there is a presumption of the interState trade or commerce. Once movement of the goods taken place from one State to another State, it shall be presumed to have been interstate sale. The presumption can be rebutted only upon evidence given by this petitioner. Except bare exceptions there is no evidence led by this petitioner and, hence, the matter has rightly been remanded by the Joint Commissioner, Commercial Taxes (Administration), Dhanbad Division, Dhanbad to verify the books of account etc. of this petitioner and to pass fresh order by the Assessing Officer. Moreover, this petitioner has also paid the Central Sales Tax and has obtained the road permits which are required for transportation of goods from one State to another. But, the fact remains that no fresh order has been passed by the Assessing Officer after the matter was remanded by the Joint Commissioner, Commercial Taxes (Administration), Dhanbad Division, Dhanbad. Counsel for the respondents has further submitted that there is an alternative remedy available u/s 46 (1) & (2) of Bihar Finance Act, and as such, this petition may not be entertained by this court.;