Disposed

Ms S H Enterprises Through Its Partner Namely Sanjay Kumar Agarwal v. Comercial Taxes

Jharkhand HC3 Mar 2020WPC/3088/2017

Case brief

AI extract

What is this about?

This common order disposes of two writ petitions by applying the decision in W.P.(T) No. 134 of 2016. The Court reaffirmed that retrospective rules under JVAT 2006 Section 18 are invalid and prospective only, quashed non-machinery forfeiture orders, and declared the challenged Section 18 proviso intra vires.

What did the court decide?

Petitions disposed of applying previous judgment; retrospective rules set aside; ITC forfeiture orders quashed.

Ms S H Enterprises Through Its Partner Namely Sanjay… — GST and Indirect Tax | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P. (T) No. 2848 of 2017

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M/s Industrial Forge and Engg.Co.Ltd., Jamshedpur. …. Petitioner

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Versus

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The State of Jharkhand.

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Secretary-cum-Commissioner,

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Commercial Taxes Department, Ranchi.

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Joint Commissioner of Commercial Taxes (Admn.), Jamshedpur Division, Jamshedpur.

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Deputy Commissioner of Commercial Taxes, Adityapur Cirlce, Jamshedpur.

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Assistant Commissioner of Commercial Taxes

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Adityapur Circle, Jamshedpur.

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… .... Respondents.

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With

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W.P. (T) No. 3088 of 2017

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M/s S.H. Enterprises, Jamshedpur. … …. Petitioner

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Versus

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The State of Jharkhand,

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Through the Secretary-cum-Commissioner,

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Commercial Taxes Department, Ranchi.

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Joint Commissioner of Commercial Taxes (Admn.),

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Jamshedpur Division, Jamshedpur.

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Deputy Commissioner of Commercial Taxes, Singhbhum Circle, Jamshedpur. … .... Respondents

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CORAM : HON'BLE MR. JUSTICE H. C. MISHRA HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioners : M/s Sumeet Gadodia & Ranjeet Kushwaha & Amrita Sinha, Advs. For the Respondents : M/s Atanu Banerjee, Sr.S.C.-III Pooja Kumari, A.C. to Sr.S.C.-III

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5/ 03.03.2020 As both these writ applications involve a common questions of law, they have been heard together, and are being disposed of by this common order.

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Heard learned counsels for the petitioners and the learned counsel for the State.

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The questions involved in both these writ applications are regarding the amendments made in Section 18 of the Jharkhand Value Added Tax Act, 2005, (herein after referred to as the 'JVAT Act'), and Rule 26 of the

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Jharkhand Value Added Tax Rules, 2006, (herein after referred to as the 'JVAT Rules'). These questions have already been decided by a detailed common Judgement dated 29.01.2020, passed by this Court in W.P.(T) No. 134 of 2016 and analogous matters, in the following terms :-

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“54. In view of cumulative facts and circumstances mentioned hereinabove, we summarise our Judgment as follows :-

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(I) The challenge to the proviso inserted to clause (ii) and Clause (iii) of sub-section 4 of Section 18 of the JVAT Act, fails in view of the fact that the petitioners have not pressed the same during the course of their arguments. (II) Retrospective effect given to the proviso inserted to clause(ii) and Clause(iii) of sub-section 4 of Section 18 of the JVAT Act, vide Amendment Act contained in Notification dated 8.2.2016, is hereby, set aside and struck down and it is declared that said provision shall have prospective effect with effect from 8.2.2016 only.

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(III) The challenge to the provision contained in clause (xviii) of sub-Section 8 of Section 18 of the JVAT Act, fails and the said provision is declared intra vires and within the legislative competence of the State Government. (IV) It is declared that the State Government has no power to frame rules with retrospective effect, and accordingly, the retrospective effect given to Rule 26(11A) of the JVAT Rules vide amending notification dated 17.2.2017 with effect from 1.4.2015, is hereby quashed and set aside, and it is declared that Rule 26(11A) shall have only prospective operation w.e.f. 17.2.2017 and onwards.

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(V) In view of fact that Rule 26(11A) has been declared to be prospective in operation i.e. w.e.f. 17.2.2017, it is hereby declared that for the period 23.09.2015 to 16.2.2017 proviso inserted to clause (ii) and Clause (iii) of sub-section 4 of Section 18 of the JVAT Act

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cannot be given effect to in absence of any machinery provision and no forfeiture of ITC shall be given effect to during the period 23.09.2015 to 16.2.2017, and any scrutiny order/assessment order and/or any order having effect of forfeiture of ITC for the aforesaid period are hereby quashed and set aside.”

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Both these writ applications are accordingly, disposed of in the same terms, as mentioned above.

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(H. C. Mishra, J.)

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(Deepak Roshan, J.)

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R.Kr.

Ms S H Enterprises Through Its Partner Namely Sanjay Kumar Agarwal v. Comercial Taxes

Case brief

What is this about?

What did the court decide?

Ms S H Enterprises Through Its Partner Namely Sanjay Kumar Agarwal v. Comercial Taxes

Case brief

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What did the court decide?

What the court decided

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