M.Y.EQBAL, J. - (1.) PETITIONER filed this writ petition for quashing the order dated 17.8.2006 passed by respondent No. 4 - Joint Commissioner of Commercial Taxes (Administration), Dhanbad Division, Dhanbad initiating a suo motu revision proceeding under Sec. 46(4) of the Bihar Finance Act, 1981 for revising the revised assessment orders passed under the Central Sales Tax Act for the years 1981 - 82 to 1997 -98 and also for quashing the final order dated 8.5.2007 passed in the said suo motu revision proceedings whereby he has quashed the revised/fresh assessment order dated 24.5.2007 passed under the Central Sales Tax Act as also Bihar Sales Tax Act and further for a direction upon the respondent No. 4 to refund the excess payment of Hales tax along with statutory interest.
(2.) THE petitioner's cases, inter alia, are as follows: Petitioner, a Private Limited Company running a hard coke plant at Govindpur, Dhanbad, is a manufacturer and seller of hard coke and is a dealer under the Bihar Finance Act and Central Sales Tax Act (hereinafter referred to as 'the BST Act' and 'the CST Act' respectively). Petitioner's case,, is that they filed certain suo motu revision petition under Sec. 46(4) of the Bihar Finance Act, before the then Commissioner of Commercial Taxes, Bihar, Patna against the original assessment orders for the years 1994 -95 and 1995 -96 passed under BST Act and CST Act wherein the Assessing Officer treated the intra state sales of hard coke as inter state sale and taxed the same under the CST Act and imposed central sales tax thereon. The said revision petitions were dismissed and against the said order, petitioner said to have filed four revision petitions under Sec. 46(2)(b) of the BST Act before the Commercial Taxes Tribunal, Bihar, Patna. The Tribunal vide its order dated 31.10.2000 passed in the said revision case allowed the said revision petitions and set aside the impugned order. It is stated the as against the assessment orders for the years 1981 -82 to 1993 -94 and 1996 -97 and the appellate orders passed therein by the Joint Commissioner of Commercial Taxes (Appeal), Dhanbad, the Circle -in -Charge, Dhanbad Circle, Dhanbad filed 14 separate suo motu revision petitions under Sec. 46 (4) of the DST Act before the Commissioner of Commercial Taxes, Jharkhand, Ranchi and were numbered as 678 -690/01. The petitioner also filed revision petitions under Sec. 46(4) of the said Act against the original assessment orders for the year 1997 -98 before the Commissioner of Commercial Taxes, Jharkhand, Ranchi. All the suo motu revision cases were taken up for hearing by the Additional Commissioner of Commercial Taxes who vide his common order dated 29.4.2006 set aside the appellate order and also the original assessment order and remitted the matters of all the aforesaid years for fresh examination of cases. The Assessing Officer thereafter passed fresh assessment orders for all the aforesaid years under BST Act and the CST Act on 24.5.2006. After passing of the aforesaid revised assessment order dated 24.5.2006, the Assessing Officer issued demand notices separately for each assessment year and on receipt of the demand notice, the petitioner said to have made full payment of such demand by treasury challans. However, for the years 1990 -91,1991 -92, 1993 -94, 1995 -96 and 1996 -97, petitioner was found to have made excess payment of tax under State Act. The petitioner thereafter filed separate applications for the refund of the amount shown as excess payments in the aforesaid demand notices. The petitioner's case is that respondent No. 5 - Joint Commissioner of Commercial Taxes, communicated to the petitioner vide order dated 24.5.2006 that the petitioner's aforesaid claim of reimbursement of Rs. 15,86,546/ - for the years 1981 -82 to 1997 -98 was found allowable under Sec. 15(b) of the CST Act. The petitioner accordingly filed separate applications for the aforesaid years for refund of the amount, but the same was not refunded. All of a sudden, the petitioner was served with a memo dated 17.8.2006 issued by the Joint Commissioner of Commercial Taxes, Dhanbad containing the order sheet dated "17.8.2006 initiating suo motu revision petitions under Sec. 46(4) of the CST Act against the aforesaid revised assessment orders for the years 1981 -82 to 1997 - 98. The Joint Commissioner of Commercial Taxes, however, passed final order on 8.5.2007 and quashed the revision assessment orders passed both under CST Act and BST Act. In the counter affidavit, the respondents' case is that as against the notices issued by the respondent under Sec. 46(4) of the Bihar Finance Act, the petitioner submitted show cause and the authority after hearing the parties passed final order on 8.5.2007. At the very outset, it is stated that as against the final order, the petitioner has got alternative remedy by filing revision before the Tribunal. Respondents' case is that as against the aforesaid impugned order dated 8.5.2007, the respondents have also moved the Tribunal by filing revision and the said revision is pending before the Tribunal. Respondents' further case is that the appeals under BST were disposed of by the learned Joint Commissioner of Commercial Taxes vide order dated 9.11.2000 whereby he set aside the impugned assessment orders and remanded the cases back to the assessing officer to allow the claim of tax paid sales after due verification of the declaration forms in Forms IX C, if the same is produced by the petitioner at the time of passing revised assessment order. However, the petitioner did not prefer any appeal under BST for rest of the financial period. Being aggrieved by the said appellate order under CST, the then Deputy Commissioner of Commercial Taxes, Dhanbad Circle, Dhanbad filed a revision before the Commissioner of Commercial Taxes. However, no revision was filed against the appellate order under Bihar Finance Act meaning thereby that the orders in remand cases under Bihar Finance Act vis -a -vis claim of: Form IX C were to be passed within two years of limitation i.e. till 9.11.2002. However, no such orders were passed by the Assessing Officer till 9.11.2002 and the orders have been passed on 24.5.2006.
(3.) THE Additional Commissioner of Commercial Taxes, Jharkhand, Ranchi vide order dated 29.4.2006 remanded the matters under CST for the said financial years back to the Assessing Officer with a direction to determine after verifying the books of accounts and order papers in light of the judgment of the Apex Court in the case of M/s. Laxmi Hard Coke Mfg. Co. and others. It is relevant to bring one important point relating to the present matter that the Tribunal vide order dated 23.11.2000 allowed the revision in favour of dealer for the financial year 1994 -95 and 1995 - 96. The then Deputy Commissioner of Commercial Taxes, Dhanbad Circle filed a reference application against the said order before the Tribunal which was allowed by the Tribunal in favour of the Department vide its order dated 29.9.2005. It is pertinent to note here that the petitioner has suppressed this relevant document although the petitioner was very much present in the said proceedings which shows that the petitioner is bent upon forcing its illegitimate claims before this Court for which it deserves to be penalized. The then Dy. Commissioner of Commercial Taxes passed the remand orders for the financial year 1981 -82 to 1997 -98 in the same fashion and style and on the basis of one format prepared on computer without fully complying with the direction of the superior authorities While passing the revision assessment orders; he failed to take into accounts the following facts: a) The order of the learned Additional Commissioner of Commercial Taxes, Ranchi was only for the financial years 19981 -82 to 1991 -92, 1993 -94, 19960 -97 and 1997 -98. b) There was no order for the financial year 1992 -93 from the superior court and that the said order could not be reviewed/revised suo motu by the said assessing officer. c) For the financial year 1994 -95 and 1995 -96, the Tribunal vide its order dated 29.5.2005 had directed to file reference petition before the High Court which was not done. Although one letter dated 5.5.2005 had been received from the Tribunal, Bihar (Patna) enclosing therein the order dated 23.11.2000 but the petitioner was well aware of the subsequent order dated 29.9.2005. The said order was deliberately withheld by the petitioner for mala fide intention. ;