M.Y.EQBAL,J. - (1.) IN these two writ petitions, since common questions of law are invoked, hence they have been heard together and are disposed of by this common judgment.
(2.) IN W.P. (T) No. 71 of 2009, the petitioner M/s. Tata Steel Limited, has prayed for the following reliefs: (i) For issuance of an appropriate writ for a declaration that the Second provision to Section 13(1) as inserted vide the notification No. SG 12/2001/AJ -01 dated 2.1.2002 (Annexure 4) of the Bihar Finance Act, 1981 (hereinafter referred to as 'the Act') as adopted by the State of Jharkhand is violative of Article 14, 301 and 304 of the Constitution in as much as the said proviso gives benefit of the Special/Concessional rate of tax on purchase of goods for manufacturing only in such cases where the such goods are used for manufacturing of goods for sale in the State of Jharkhand or in the course of inter state trade and commerce but denies such benefit in cases where such manufactured goods are transfered by way of stock transfer outside the State for sale. (ii) For issuance of an appropriate writ for a declaration that vide notification No. SG 12/2001/AJ -01 dated 2.1.2002 no geographical restriction for sale of the manufactured goods has been imposed for being eligible for concessional rate of tax Under Section 13(1)(b) and as such the Petitioner will be eligible Under Section for purchase of goods at concessional rate of tax Under Section 13(1)(b) even if such goods are used for manufacturing goods for sale outride the State of Jharkhand. (iii) For issuance of an appropriate writ for a declaration that the petitioner is entitled to the benefit of purchase of goods at a Special/Concessional rate of tax under Section 13(1)(b) of the Act as the Form IX being the prescribed declaration form Under Section 13(2)(i) read with Rule 13, do not provide for any declaration to the effect that the goods purchased at concessional rate of tax must be sold only within the State of Jharkhand or in the course of inter state trade or commerce and in the absence of any such declaration in the statutory form, the petitioner can not be denied purchase of goods at concessional rate of tax Under Section 13(1)(b) for use in manufacturing goods for sale outside the State of Jharkhand. (iv) For issuance of an appropriate writ for a declaration that in absence of any mechanism prescribed by Rules for assessment of tax on denial of concessional rate of tax Under Section 13(1)(b), the entire Section 13(1)(b) has been rendered unworkable. (v) For issuance of an appropriate writ or writ in the nature of certiorari for quashing the order of assessment made in respect of the assessment year 2004 -05 (Annexure -5) being wholly illegal, invalid and arbitrary being violative of Article 301 of the Constitution of India as well as Article 14 of the Constitution of India. (vi) For issuance of an appropriate writ or writ in the nature of certiorari for quashing the notice of demand dated 19.08.2008 (Annexure -5/1) raised pursuant to the aforesaid assessment order is illegal, invalid and arbitrary. Similarly, in W.P. (T) No. 1325 of 2009, the petitioner M/s. Tata Motors Limited, prayed for the following reliefs: (i) For issuance of an appropriate writ for a declaration that the Second proviso to Section 13(1) as inserted vide the notification No. SG 12/2001/AJ -01 dated 2.1.2002 (Annexure -3) of the Bihar Finance Act, 1981 (hereinafter referred to as 'the Act') as adopted by the State of Jharkhand is violative of Article 14, 301 and 304 of the Constitution in as much as the said proviso gives benefit of the Special/Concessional rate of tax on purchase of goods for manufacturing only in such cases where the such goods are used for manufacturing of goods for sale in the State of Jharkhand or in the course of inter state trade and commerce but denies such benefit in cases where such manufactured goods are transferred by way of stock transfer outside the State for sale and also sale in course of export outside the territory of India. (ii) For issuance of an appropriate writ for a declaration that vide notification No. SG 12/2001/AJ -01 dated 2.1.2002 no geographical restriction for sale of the manufactured goods has been imposed for being eligible for concessional rate of tax Under Section 13(1)(b) and as such the Petitioner will be eligible for purchase of goods at concessional rate of tax Under Section 13(1)(b) even if such goods are used for manufacturing goods for sale outside the State of Jharkhand, as also sale in course of export outside the territory of India. (iii) For issuance of an appropriate writ for a declaration that the petitioner is entitled to the benefit of purchase of goods at a Special/Concessional rate of tax under Section 13(1)(b) of the Act as the Form IX, being the prescribed declaration form Under Section 13(2)(i) read with Rule 13, do not provide for any declaration to the effect that the goods purchased at concessional rate of tax must be sold only within the State of Jharkhand or in the course of inter state trade or commerce and in the absence of any such declaration in the statutory form, the petitioner can not be denied purchase of goods at concessional rate of tax Under Section 13(1)(b) for use in manufacturing goods for sale outside the State of Jharkhand including sale in course of export. (iv) For issue of any appropriate writ for a declaration that in absence of any mechanism prescribed by Rules for assessment of tax on denial of concessional rate of tax Under Section 13(1)(b), the entire Section 13(1)(b) has been rendered unworkable. (v) For issuance of an appropriate writ or writ in the nature of certiorari for quashing the order of assessment made in respect of the assessment year 2005 -06 (Annexure -4) being wholly illegal, invalid and arbitrary being violative of Article 301 of the Constitution of India as well as Article 14 of the Constitution of India to the extent the said assessment order relates to disallowance of the claim of the petitioner for purchase of raw materials at concessional rate and levy of tax on the petitioner Under Section 13(3) of the Bihar Finance Act being differential rate of tax of additional 8% over the enhanced turnover. (vi) For issuance of an appropriate writ or writ in the nature of certiorari for quashing the notice of demand dated 31.12.2008 (Annexure -4/1) raised pursuant to the aforesaid assessment order, to the extent it relates to disallowance of the claim of the petitioner for purchase of raw materials at concessional rate and levy of tax on the petitioner Under Section 13(3) of the Bihar Finance Act being differential rate of tax of additional 8% over the enhanced turnover. (vii) For issuance of any other appropriate writ(s)/order(s)/direction(s) as Your Lordships may deem fit and proper in the facts and circumstances of the case.
(3.) UNDISPUTEDLY , the order of assessment has been passed by the authority under the provisions of 1981 Act and against the assessment order, there is a provision of statutory appeal and revision under the said Act. But the instant writ petitions have been filed not only for quashing the assessment order but also for a declaration that the proviso to Section 13(1) as inserted by notification dated 2.1.2002 is violative of Article 14, 301 and 304 of the Constitution of India and also for a declaration that the said notification, no geographical restriction for sale of manufactured goods has been imposed for being eligible for concessional rate of tax under Section 13(b) of the Act.;