DEEPAK ROSHAN, J. - (1.) The instant application has been preferred by the petitioner-company for the following reliefs:- (a) For quashing of the Order dated 17.05.2017 (Annexure-9) passed by the Commercial Taxes Tribunal so far it pertains to Revision Case No. 128 of 2016 which has been dismissed by the Tribunal although for the same inspection and via common Judgment Revision Case No. 129 of 2016 has been allowed; (b) For quashing the Appellate Order dated 03.06.2013 (Annexure-8) by which the petitioner's appeal against the penalty order has been dismissed and the order of penalty under Section 70(5)(b) of Jharkhand Value Added Tax Act, 2005 has been confirmed; (c) For quashing the Order dated 26.05.2010 (Annexure-6) by which the assessing authority has imposed penalty of Rs. 58,78,944/- under Section 70(5)(b) of Jharkhand Value Added Tax Act 2005 on the Petitioner; (d) And also for quashing the demand notice dated 26.05.2010 (Annexure-7) raised pursuant to the aforesaid orders.
(2.) The facts of the case lie in a short compass. A team of officers of the Commercial Taxes Department made an inspection of the petitioner's factory on 13.05.2010 and prepared an inspection report in which, besides other allegations at page-4 of the inspection report, it was stated that the entries in the books of account of the goods purchased in the year 2010-11 namely the raw materials, iron ores, coal and dolomite have not been made and consequently the goods were seized under the provisions of Section 70(5)(a) of the JVAT Act 2005. Proceeding was also initiated under Section 40(2) of the JVAT Act 2005, but in the present case, the petitioner is not concerned with that proceeding in as much as the proceeding under section 40(2) was held to be bad in law by the Tribunal in the same impugned order and the levy of penalty under section 40(2) was also set aside. A show-cause notice was issued to the petitioner subsequent to the said inspection on the same day i.e. on 13.05.2010 alleging imposition of penalty under Section 40 (2) and Section 70 (5) (b) of the JVAT Act, 2005. Pursuant to the show-cause notice, the petitioner appeared and filed its show-cause reply on 17.05.2010 (Annexure-5) and it was stated that the entries in the books of accounts were not made because the statutory audit was going on and the records were with the auditor and the person who was looking after accounting was on leave due to his father's death. By way of Annexure-5 series, petitioner has annexed the concerned documents regarding purchase of coal and other materials which were filed along with the show cause reply. All these documents were also annexed in revision petition before the Tribunal by way of Annexure-4 Series. The authorities passed an order of penalty vide order dated 26.05.2010 levying a penalty of Rs. 58,78,944.00/-. Pursuant to the said order of penalty, a notice of demand was also issued for a sum of Rs. 58,78,944/-. The petitioner filed an appeal which was dismissed vide order dated 03.06.2013 without considering any of the issues raised by the petitioner. Being aggrieved by the penalty order under Section 70 (5) (b) and the appellate order, the petitioner filed a revision petition before the Commercial Taxes Tribunal which was registered as JR-128 of 2016. It is pertinent to note that penalty under Section 40(2) was also passed and appeal was also dismissed and accordingly the petitioner had filed another revision petition being JR - 129 of 2016. Both the cases namely JR-128/2016 which is in relation to the orders passed under Section 70(5)(b) and JR-129/2016, which dealt with the orders passed under Section 40(2) of the JVAT Act were heard together by the Commercial Taxes Tribunal and the learned Tribunal proceeded to pass a common impugned judgement. So far as Revision Case No. JR-129/2016 is concerned which dealt with penalty under Section 40(2) of the JVAT Act is concerned, the learned Tribunal after considering various judgments of the Jharkhand High Court as well as of the Hon'ble Supreme Court of India hold that findings of the appellate authorities cannot be sustained and ultimately the order of penalty under Section 40 (2) was set aside. However, the learned Tribunal sustained the order of penalty passed under Section 70 (5) (b) of the JVAT Act 2005, which has been challenged by the petitioner in the instant writ application.
(3.) The learned senior counsel for the petitioner submits that from perusal of the first part and last part of the show-cause notice dated 13.05.10, the following things are evident: (a) No reasons at all has been assigned for issuance of notice under Section 70(5)(b); (b) No satisfaction of the authorities has been recorded for imposition of penalty under Section 70 (5) (b); (c) No gist of accusations has been given in the said notice as required under Rule 58 of the JVAT Rules, 2006.;