M.Y.EQBAL, J. - (1.) THE instant writ petition has been listed for hearing after the matter was remitted back by the Supreme Court in terms of order dated 23rd July, 2007 passed in Civil Appeal No. 3188 of 2007.
(2.) THE writ petition was filed by the petitioner challenging the order of re -assessment dated 5/5/2006 passed under Sections 17(3) and 19 of the Bihar Finance Act. The writ petition was dismissed by this Bench on 27/11/2006 holding that the petitioner may avail the statutory remedy of appeal against the assessment order as provided under the Act. Aggrieved by the said order the petitioner moved the Supreme Court. The Supreme Court remitted the matter to this court with observation that the question of vires of the provision of the Act and the Rules cannot be gone into by the Authority under the Act. The relevant portion of the order of the Supreme Court is reproduced herein below: In our view the question of vires of provisions of the Act or the Rule cannot be gone into by the Authority under the Act and on this account the High Court could not have dismissed the writ petition on the ground of alternate remedy. Accordingly, this appeal is accepted, impugned order is set aside and he case is remitted to the High Court for a fresh decision in accordance with law. In case, the High Court comes to the conclusion at the preliminary stage that the point regarding vires of Rules 13A is already concluded by a judgment of this Court then, the High Court shall be at liberty to pass the order accordingly. Besides challenging the re -assessment order dated 5/5/2006 for the period, 1999 -2000, the petitioner also challenged the vires of Rule 13A of the Bihar Sales Tax Rules, 1983 as amended by notification dated 01.2.2000 and also Section 21(1)(a)(1) of the Bihar Finance Act, 1981 on the ground, inter alia, that such provisions are unworkable and ultra vires in view of the law laid down by the Supreme Court in the case of Gannon Dunkerley v. State of Rajasthan 1988 STC 204 as well as the judgment passed by the Patna High Court in the case of Larsen and Toubro Ltd. v. State of Bihar (2004) 134 STC 354.
(3.) THE petitioner is a registered company having its activities almost in all the States including the State of Jharkhand. It carries on the business of manufacturing, trading, leasing and execution of work contracts. For the purpose of execution of work contracts by its construction division, the petitioner got itself registered under the Jamshedpur Urban Circle, Jamshedpur both under the Central Sales Tax and the Bihar Finance Act. The petitioner among various contract execution for different awardees, secured an order from M/s. Nisso Awai Corporation, a Japanese company. The petitioner is a sub -contractor engaged in execution of contract. Petitioner's case is that it has been filing returns both under the Bihar Finance Act and under the Central Sales Tax Act in the Jamshedpur Urban Circle and the assessment order for the years 1999 -2000 was duly passed in 2003. Pursuant to the order of assessment passed for the year 1999 -2000, the petitioner was served with a demand notice for excess payment dated 25.4.2003. On account of certain error apparent on the face of the record, the petitioner filed review application under Section 47 of the Bihar Finance Act and accordingly, order of review was passed. However, after expiry of two years, the petitioner was surprisingly served with a notice purported to be under Section 17(2) read with Section 19(1) of the Act whereby the petitioner was directed to appear before the Deputy Commissioner of Commercial Taxes with the entire record on the ground that the authority came to know that there has been less assessment of tax for the said period. The petitioner was again served with another notice dated 27.5.2005 pursuant to which it appeared. Another demand notice dated 18.2.2005 was also served by the respondents alleging, inter alia, that the petitioner has suppressed relevant materials which were used by it during execution of work contract and thereby the petitioner was asked to file show cause and produce the entire records. In compliance thereof, the petitioner submitted show cause and the Authority, after considering the show cause, passed the impugned order under Sections 17(3), 19(1)(a) and 19(2) of the Bihar Finance Act raising a demand of Rs. 3,42,52,151=00.;