Quashed

Ms B K Traders through Its Proprietor Shri Vinay Kumar Agarwal v. the State of Jharkhand

Jharkhand HC2 May 2023WPC/1669/2021

Case brief

AI extract

What is this about?

The High Court quashed impugned orders that relegated taxpayers to the Appellate Authority without providing an opportunity of hearing. The court remanded the matter to the Deputy Commissioner of Commercial Taxes for a fresh order after affording a hearing.

What did the court decide?

Impugned orders by the concerned authorities are quashed. The matter is remanded to the respondent no. 4 to pass a fresh order after affording an opportunity of hearing within 12 weeks.

Ms B K Traders through Its Proprietor Shri Vinay Kumar… — Quashing and FIR | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P (T) No. 1633 of 2021

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M/s Tirupati Traders, having its office at Chouparan, Hazaribagh, Jharkhand though its Proprietor Shri Sudhir Kumar Keshri, R/o Marhedi, G.T. Road, P.O. & P.S.Chouparan, District- Hazaribagh (Jharkhand)

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... … Petitioner

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Versus

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1. The State of Jharkhand

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2. The Commissioner of Commercial Taxes, Project Bhawan, HEC Dhurwa, Ranchi (Jharkhand)

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3. The Joint Commissioner of Commercial Taxes (Appeals), Hazaribagh Division, Hazaribagh.

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4. The Deputy Commissioner of Commercial Taxes, Koderma Circle, Koderma ... … Respondents

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With

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W.P (T) No. 1669 of 2021

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M/s B.K. Traders, having its office at C-5, Bazar Samiti, Kaitha, Ramgarh Cantt., Hazaribagh, Jharkhand through its Proprietor Shri Vinay Kumar Agarwal, R/o Agrasen Path, Ramgarh Cantt. P.O. & P.S.- Ramgarh, District- Ramgarh (Jharkhand)

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... … Petitioner

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Versus

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1. The State of Jharkhand 2. The Commissioner of Commercial Taxes, Project Bhawan, HEC Dhurwa, Ranchi (Jharkhand)

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3. The Joint Commissioner of Commercial Taxes (Appeals), Hazaribagh Division, Hazaribagh.

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4. The Deputy Commissioner of Commercial Taxes, Ramgarh Circle, Ramgarh ... … Respondents

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With

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W.P (T) No. 1684 of 2021

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M/s Goyal Enterprises, having its office at Phusroi, Bokaro, Jharkhand through its Proprietor Shri Ajay Kumar Goyal, R/o Phusro Bazar, Phusro, P.O. & P.S.- Phusro, Town & DistrictBokaro (Jharkhand) ... … Petitioner

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Versus

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1. The State of Jharkhand

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2. The Commissioner of Commercial Taxes, Project Bhawan, HEC Dhurwa, Ranchi (Jharkhand)

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3. The Joint Commissioner of Commercial Taxes (Appeals), Hazaribagh Division, Hazaribagh.

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4. The Deputy Commissioner of Commercial Taxes, Tenughat Circle, Phusro ... … Respondents

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With

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W.P (T) No. 1714 of 2021

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M/s Tirupati Traders, having its office at Chouparan, Hazaribagh, Jharkhand through its Proprietor Shri Sudhir Kumar Keshri, R/o Merhedi, G.T. Road, P.O. & P.S.Chouparan, District- Hazaribagh (Jharkhand) ... … Petitioner

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Versus

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1. The State of Jharkhand

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2. The Commissioner of Commercial Taxes, Project Bhawan, HEC Dhurwa, Ranchi (Jharkhand)

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3. The Joint Commissioner of Commercial Taxes (Appeals), Hazaribagh Division, Hazaribagh.

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4. The Deputy Commissioner of Commercial Taxes, Koderma Circle, Koderma ... … Respondents

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--------

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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioners : Mr. Nitin Kr. Pasari, Advocate For the Respondents^: Mr. Sachin Kumar, A.A.G-II

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13/02.05.2023 Heard Mr. Nitin Kr. Pasari, learned counsel for the petitioners and Mr. Sachin Kumar, learned A.A.G-II, for the respondents.

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2. Since all the writ petitions bare a common issue the same are being disposed of by this common order.

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3. In W.P.(T) 1633 of 2021, the petitioner has prayed for quashing of the impugned order dated 27.01.2020 passed by the Commercial Taxes Tribunal in Revision Case No. HZ 129 of 2014, whereby and whereunder, without dealing with the issues raised had misinterpreted the provisions of Section 40(2) of the Act, the petitioner has been relegated to the Appellate Authority. The petitioner has further prayed for quashing of the order dated 27.08.2014 passed by the respondent no. 3, whereby and whereunder, the appeal preferred by the petitioner has been rejected solely on the ground of non-deposit of 20% of the disputed amount, without taking into consideration any of the points raised by the petitioner as also without assigning any plausible reasons for rejecting the same. The petitioner has further prayed for quashing of the order dated 11.06.2014 passed by the respondent no. 4, by which, on the purported allegation of evasion of tax, tax and penalty amounting to Rs. 7,33,537/- has been imposed upon the petitioner by invoking the powers under Section 40(1)(b) read with Section 37(6) of the Jharkhand Value Added Tax Act, 2005.

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In W.P.(T) 1669 of 2021, the petitioner has prayed for quashing of the order dated 27.01.2020 passed by the Commercial Taxes Tribunal in Revision Case No. HZ 208 of 2013, by which, the petitioner has been relegated to the

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Appellate Authority. The petitioner has also prayed for holding and declaring that Section 40(2) of the Act does not empower to impose tax, penalty and interest without finalization of enquiry as contemplated under the Act. The petitioner has further prayed for quashing of the order dated 14.01.2013 passed by the respondent no. 4, whereby and whereunder, invoking the powers under Section 40 of the Act, tax and interest as penalty has been imposed.

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In W.P.(T) 1684 of 2021, the petitioner has prayed for quashing of the order dated 27.01.2020 passed by the Commercial Taxes Tribunal in Revision Case No. HZ 120 of 2014, by which, the petitioner has been relegated to the Appellate Authority. The petitioner is aggrieved by the order dated 01.08.2014 passed by the respondent no. 3, by which, the appeal preferred by the petitioner has been rejected solely on the ground of non-deposit of 20% of the disputed amount, without taking into consideration any of the points raised by the petitioner as also without assigning any plausible reasons for rejecting the same. The petitioner has further prayed for quashing of the order dated 10.06.2014 passed by the respondent no. 4, by which, on the purported allegation of evasion of tax, tax and interest amounting to Rs. 4,29,531/- has been imposed upon the petitioner by invoking the powers under Section 40(2) of the Jharkhand Value Added Tax Act, 2005.

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In W.P.(T) 1714 of 2021, the petitioner has prayed for quashing of the impugned order dated 27.01.2020 passed by the Commercial Taxes Tribunal in Revision Case No. HZ 130 of 2014, by which, the petitioner has been relegated to the Appellate Authority. The petitioner is also aggrieved by the order dated 27.08.2014 passed by the respondent no. 3, by which, the appeal preferred by the petitioner has been rejected on the ground of non-deposit of 20% of the disputed amount, without taking into consideration any of the points raised by the petitioner as also without assigning any plausible reasons for rejecting the same. The petitioner has further prayed for quashing of the order dated 11.06.2014 passed by the

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respondent no. 4, whereby and whereunder, for the purported allegation of evasion of tax, tax and interest amounting to Rs. 3,71,300/- has been imposed upon the petitioner invoking the powers under Section 40(2)(b) of the Jharkhand Value Added Tax Act, 2005.

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4. The common thread which runs through all these writ petitions is of the respective petitioners being relegated to the Appellate Authority subject to deposit of 20% of the disputed amount and if such condition is met the Appellate Authority was to proceed further in accordance with law and dispose of the appeal(s) expeditiously.

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5. Mr. Nitin Kr. Pasari, learned counsel for the petitioners has taken us through the impugned orders and has submitted that the initial order passed by the respondent no. 4 in the respective writ petitions were behind the back of the petitioners as the petitioners were never given an opportunity of hearing. It has been submitted that these facts were also brought to the notice of the Commercial Taxes Tribunal but no consideration had been made and in fact though the respective petitioners were relegated to the Appellate Authority but certain findings were enunciated in the order of the Commercial Taxes Tribunal which would have a binding effect on the Appellate Authority and even if an appeal is filed by depositing 20% of the assessed tax the result will be a forgone conclusion considering the observations made by the learned Commercial Taxes Tribunal.

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6. Mr. Sachin Kumar, learned A.A.G-II, appearing on behalf of the respondents have vehemently opposed the prayer made by the writ petitioners and have submitted that since the forum of appeal is still available to the petitioners subject to deposit of 20% of the disputed amount the present writ petitions are not maintainable. He has also raised further grounds to the effect that the tax and penalty imposed upon the respective writ petitioners are in accordance with law and needs no interference.

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7. Although, learned counsel for the respective parties have assailed the impugned orders passed by the concerned

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respondents as well as by the learned Commercial Taxes Tribunal but in view of the order we propose to pass we do not intend to discuss the merits of the case lest the same affects the final order which is to be passed by the authority concerned.

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8. As has been stated by Mr. Nitin Kr. Pasari, learned counsel for the petitioners while imposing tax and penalty by the respondent no. 4 the petitioners were never heard which fact though was strongly refuted by the learned A.A.G.-II on behalf of the respondents but the records speaks otherwise and it substantiates what has been submitted by Mr. Pasari, learned counsel appearing for the petitioners.

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9. In view of such fact, therefore, we hereby quash the impugned orders passed in the respective writ petitions by the concerned authorities and remit the matter back to the respondent no. 4 to pass a fresh order in accordance with law after giving an opportunity of hearing to the respective writ petitioners. The exercise indicated above should be concluded within a period of 12 (Twelve) weeks from the date of receipt/production of a copy of this order.

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10. We once again reiterate that we have not visited the merits of the case and the order of remand is on account of the petitioners having not been given an opportunity of hearing.

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11. All these writ petitions are disposed of.

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(Rongon Mukhopadhyay, J.)

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(Deepak Roshan, J.)

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Alok/-

Ms B K Traders through Its Proprietor Shri Vinay Kumar Agarwal v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Ms B K Traders through Its Proprietor Shri Vinay Kumar Agarwal v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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