Parth Prateem Sahu, J.
1. Subject matter in WPT No. 152/2018 is the assessment year 2012-13 and challenge is to the order dated 30.8.2017 (Annexure P-1) whereby respondent Department exercising powers under Section 9(2) of the Central Sales Tax Act, 1956 (for short 'the Act of 1956') read with Section 22(1) of the Chhattisgarh Value Added Tax, 2005 (for short 'the Act of 2005'), reassessed tax and held petitioner liable to pay an amount of Rs. 97,23,420/- towards tax, interest and penalty.
2. Subject matter in WPT No. 153/2018 is the assessment year 2014-15 and by the order dated 28.8.2017 (Annexure P-1) passed under Section 9(2) of the Act of 1956 read with Section 22(1) of the Act of 2005, respondent Department reassessed tax and held petitioner liable to pay an amount of Rs. 1,97,87,694/- towards tax, interest and penalty.
3. Subject matter in WPT No. 162/2018 is the assessment year 2013-14 and challenge is to the order dated 28.8.2017 (Annexure P-1) whereby respondent Department exercising powers under Section 9(2) of the Act of 1956 read with Section 22(1) of the Act of 2005, reassessed tax and held petitioner liable to pay an amount of Rs. 2,99,14,429/- towards tax, interest and penalty.
4. As all the above writ petitions are filed by same registered dealer and the order under challenge of reassessment is with respect to different assessment years, the grounds raised in writ petitions are one and the same, hence, these petitions were heard together and are being disposed of by this common order.
5. Petitioner company is a registered dealer under the Act of 2005 and is engaged in the business of manufacturing and selling 'pan masala'. Petitioner company is having its Head Office at Kanpur (UP) and manufacturing unit in Rajnandgaon (CG). Petitioner company submitted its yearly return for the assessment year 2012-13, 2013-14, 2014-15. Along with return, petitioner submitted C-Form for the inter-state sale. Upon receiving verification report from Delhi, the Commissioner vide orders impugned rejected yearly return submitted and reassessed the tax under Section 22(1) of the Act of 2005 after issuing notice. Petitioner company aggrieved by the order of reassessment passed under Section 22(1) of the Act of 2005 read with Section 9(2) of the Act of 1956, preferred revisions under Section 49(1) of the Act of 2005 which came to be dismissed vide order dated 14.3.2018 by respondent No. 2 against which petitioner-company preferred these writ petitions seeking following reliefs:-
"WPT No. 152/2018;
"10.1. Calling for the records of the case.
10.2. Setting aside/quashing the revision order dated 14.3.2018 being Annexure P/6
10.3. Setting aside/quashing the assessment order dated 30.8.2017 being Annexure P/1.
10.4. Directing the respondent not to take any coercive measures/actions, for recovery of any tax amount, arising out of the impugned assessment and revision orders till the petition is disposed of.
10.5. Any other relief that this Hon'ble Court may deem fit."
WPT No. 153/2018;-
10.1. Calling for the records of the case.
10.2. Setting aside/quashing the revision order dated 14.3.2018 being Annexure P/8
10.3. Setting aside/quashing the assessment order dated 28.8.2017 being Annexure P/1.
10.4. Directing the respondent not to take any coercive measures/actions, for recovery of any tax amount, arising out of the impugned assessment and revision orders till the petition is disposed of.
10.5. Any other relief that this Hon'ble Court may deem fit."
WPT No. 162/2018;-
10.1. Calling for the records of the case.
10.2. Setting aside/quashing the revision order dated 14.3.2018 being Annexure P/7
10.3. Setting aside/quashing the assessment order dated 28.8.2017 being Annexure P/1.
10.4. Directing the respondent not to take any coercive measures/actions, for recovery of any tax amount, arising out of the impugned assessment and revision orders till the petition is disposed of.
10.5. Any other relief that this Hon'ble Court may deem fit."
6. Mr. Neelabh Dubey, learned counsel for the petitioner in all three writ petitions would submit that during course of business the petitioner made inter-state sale of pan masala product manufactured at the unit in Rajnandgaon (CG) to purchasing dealer located in Delhi. At the time of purchase, the purchasing dealer produced declaration in Form-C issued by the Department of Trade and Taxes, Government of NCT, Delhi for the relevant period i.e. 4th Quarter 2014-15. Based on Form-C submitted by purchasing dealer, sales tax was assessed and deposited with respondent Department on 14.6.2016. Petitioner received notice for initiating re-assessment proceedings based on investigation report received vide letter of respondent No. 2 dated 24.3.2017. In re-assessment proceedings initiated by respondent No. 3-Assistant Commissioner, Commercial Tax, Rajnandgaon (CG), without considering reply to show-cause notice submitted by petitioner mentioning that status of purchasing dealer in official website of respondent Department has been shown as 'active', therefore, the petitioner sold goods manufactured by it and charged tax at the reduced rate considering Form-C issued by the Department to the purchasing dealer. Respondent Department only considered report forwarded by the Commissioner, Raipur and held the petitioner company liable for payment of difference of tax as also interest and penalty, total amounting to Rs. 1,64,04,421/-. The order passed by the respondent No. 3 is per-se illegal and arbitrary. Aggrieved with the order passed by the authority under Section 9(2) of the Act of 1956 read with Section 22(1) of the Act of 2005, petitioner preferred revision petitions before the Commissioner under Section 49(1) of the Act of 2005 specifically pleading that all three purchasing dealers of petitioner company were registered, their status in official website of department is shown as 'active'; Form-C have been issued online which is confirmed by TIN case assessment. Cancellation of registration certificate is from later date of sale transactions, therefore, the petitioner could not be held liable for any mischief or wrong, if committed by purchasing dealer. The Revisional Authority has also not considered the aspect of cancellation of registration of purchasing dealers on later date with retrospective effect to be arbitrary, illegal and dismissed the revision. He also pointed out that unless and until order of assessment is passed, there cannot be re-assessment proceeding. Hence, also the order dated 28.8.2017 (Annexure P-1) passed by the respondent No. 3-Assistant Commissioner is not sustainable. In support of this contention he places reliance on the decision of High Court of Delhi in Milk Food Vs. Commissioner VAT & Ors. reported in (2013) 59 VST 1 (Del) and order passed by the High Court of Chhattisgarh in WPT No. 77/2017 and other connected writ petitions.
7. Ms. Ruchi Nagar, learned Deputy Government Advocate opposing submissions of learned counsel for petitioner would submit that there are other purchasing dealers also in Delhi, but the petitioner sold pan masala to M/s. Mahavir Enterprises, Delhi; M/s. Bharti Sales, Delhi; & M/s. Ganga Enterprises, Jagatpuri, Delhi. After receiving return under Form-5 (b) dated 14.5.2016 along with documents, based upon return submitted letters have been forwarded to the concerned State for verification. After receiving verification report from Delhi, return in Form-5(b) has been held to be invalid. As per report, registration of M/s. Mahavir Enterprises was cancelled and Form-C for the year 2014-15 was not issued. Similarly, registration of M/s. Bharti was also cancelled, whereas registration of M/s. Ganga Enterprises was deleted. Hence, respondent authority has rightly passed the order impugned and revisional authority has not erred in dismissing revision petition filed by petitioner under Section 49(1) of the Act of 2005. She further contended that order impugned is appealable under Section 48 of the Act of 2005, therefore, present writ petition is not maintainable in view of availability of efficacious alternative remedy to the petitioner.
8. I have heard learned counsel for the parties and perused the documents available on record.
9. As regards the ground raised by learned counsel for the respondent State that order impugned is appealable under Section 48 of the Act of 2005, therefore, writ petition is not maintainable. The Hon'ble Supreme Court in case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai reported in (1998) 8 SCC 1 [LQ/SC/1998/1044] while considering the issue/objection on maintainability of writ petition under Article 226 of the Constitution of India, has held that alternative remedy not to operate as a bar in atleast three contingencies; (i) where writ petition has been filed for enforcement of any of the fundamental rights; (ii) where there has been a violation of principle of natural justice; and (iii) where the order or proceeding is absolutely without jurisdiction or the vires of an Act is challenged. In case of Jeans Knit Private Limited, Bangalore vs. Deputy Commissioner of Income Tax, Bangalore reported in taking note of earlier decision in case of Commissioner of Income Tax vs. Chhabil Das Agrawal reported in (2014) 1 SCC 603, [LQ/SC/2013/871] Hon'ble Supreme Court held that writ petitions can be entertained if they come within the principles laid down in the case of Calcutta Discount Company vs. ITO reported in AIR 1961 SC 372 [LQ/SC/1960/254] .
Recently in case of Assistant Commissioner of State Tax & Ors. vs. Commercial Steel Ltd. reported in , Hon'ble Supreme Court while dealing with issue of maintainability of writ petition has held that High Court having regard to the facts of case, can exercise discretion to entertain or not to entertain writ petition. An alternative remedy is not an absolute bar for invoking writ jurisdiction of the High Court under Article 226 of the Constitution of India and in cases where the authority against whom writ is filed is shown to have had no jurisdiction or had usurped jurisdiction without any legal foundation, a writ petition can be entertained.
10. In case at hand, the petitioner has raised the ground that without there being an order of assessment, the respondent authority erred in passing an order of reassessment under Section 9(2) of the Act of 2005.
11. To appreciate the submissions of learned counsel for petitioner, I find it appropriate to have a glance of relevant provisions of the Act of 2005. Section 19 of the Act of 2005 deals with furnishing of 'returns'. Section 20 deals with 'returns to be furnished by a person liable for tax deduction at source'. Section 21 provides for 'assessment of tax' and relevant provisions of Section 21 are extracted below for ready reference:-
"21. Assessment of tax.-(1) The assessment of every registered dealer shall be made separately for every year:
Provided that-
(a) the Commissioner, may, subject to such conditions and restrictions as may be prescribed, assess the tax due from any dealer for any part of a year;
(b) a registered dealer who claims a refund of input tax rebate under the provisions of sub-section (4) of Section 13,-
(i) in his return for any quarter of a year and makes an application for that purpose, along with such return or before the date on which the return for the subsequent quarter becomes, due; or
(ii) in his returns for a year and makes an application for that purpose before the date on which the return for the first quarter of the subsequent year becomes due, the assessment of such dealer for that quarter or year, as the case may be shall be made in accordance with the provisions of sub-section (4) within a period of three months from the date of receipt of the application.
(2) Where a registered dealer other than the registered dealer referred to in the proviso to sub-section (1) has furnished,-
(i) all the returns for a year and/or;
(ii) revised return for any quarter or quarters of such year, in the prescribed manner and within the prescribed time or before the date on which the return for the first quarter of the subsequent year becomes due,
(iii) has paid the tax payable according to such returns or revised returns as also interest payable, if any, and
(iv) has furnished the statement under clause (b) of sub-section (1) of section 19, within the prescribed time, the returns furnished or revised returns furnished by such dealer for that year shall be accepted and his assessment shall be deemed to have been made for the purpose of sub-section (1): Provided that the assessment under this sub-section of every such registered dealer who is required to furnish audit report under sub-section (2) of section 41 shall be deemed to have been made if such dealer has furnished the audit report along with the statement referred to in sub-clause (iv).
(3) Notwithstanding the provisions of sub-section (2), the commissioner shall select for reassessment a number of such dealers as he deems fit whose assessment for a year is deemed to have been made under sub-section (1) in accordance with the provisions of sub-section (2) and such selection shall be made within one calendar year from the said year.
(4) (a) The Commissioner shall serve on a registered dealer referred to in the proviso to sub-section (1) or in sub-section (3) or a registered dealer who is not eligible for assessment under sub-section (2) with a notice in the prescribed form appointing a place and day and directing him-
(i) to appear in person or by an agent entitled to appear in accordance with the provisions of Section 24; or
(ii) to produce evidence or have it produced in support of the returns; or
(iii) to produce or cause to be produced accounts, registers; cash memoranda or other documents relating to his business;
(b) The Commissioner, after hearing the registered dealer or his agent and examining the evidence produced in compliance with the requirements of sub-clause (ii) or sub-clause (iii) of clause (a) and such further evidence as he may require, shall assess or re-assess him to tax.
xxx xxx xxx
xxx xxx xxx
(5) If a registered dealer referred to in clause (a) of sub-section (4)-
(a) has not furnished returns and statement in respect of any period by the prescribed date; or
(b) has knowingly furnished incomplete or incorrect returns or statement for any period; or
(c) having furnished such returns has failed to comply with any of the terms of a notice issued under clause (a) of sub-section (4); or
(d) (i) has not maintained any accounts; or
(ii) the accounts maintained by him are not in accordance with the provisions of sub-section (1) of Section 41; or
(iii) has not regularly employed any method of accounting; or
(iv) the method employed is such that in the opinion of the Commissioner assessment cannot properly be made on the basis thereof.
(6) xxxxxxxxx
(7) xxxxxxxxx
(8) Notwithstanding anything contained in sub-section (7), where assessment or re-assessment proceedings in respect of any dealer relating to any period cannot be completed before the expiry of the period specified therefore in the said sub-section, the State Government, may by notification, for reasons to be recorded in writing, extend the period for the completion of such assessment proceedings in respect of such dealers by such further period as may be specified in such notification ....."
12. Section 22 of the Act of 2005 provides for assessment/re-assessment of tax in certain circumstances. Relevant provisions of Section 22 are extracted below for ready reference;-
"22. Assessment/reassessment of tax in certain circumstances.-
(1) Where an assessment or reassessment of a dealer has been made under this Act or the Act repealed by this Act and for any reason any sale or purchase of goods liable to tax under this Act or the Act repealed by this Act during any period,-
(a) has been under assessed or has escaped assessment; or
(b) has been assessed at a lower rate; or
(c) any wrong deduction has been made while making the assessment; or
(d) a rebate of input tax has incorrectly been allowed while making the assessment; or
(e) is rendered erroneous and prejudicial to the interest of revenue consequent to or in the light of any judgment or order of any Court or Tribunal, which has become final, the Commissioner may at any time within a period of five calendar years from the date of order of assessment, or from the date of judgment or order of any Court or Tribunal proceed in such manner as may be prescribed, to assess or reassess, as the case may be the tax payable by such dealer after making such enquiry as he considers necessary and assess or re-assess to tax.
(2) The Commissioner shall, where the omission leading to assessment or re-assessment made under sub-section (1) is attributable to the dealer, in addition to interest at the rate specified in sub-clause (iii) of clause (a) of sub-section (4) of Section 19, impose upon him a penalty not exceeding twice the amount of tax so assessed or reassessed but shall not less than one and half times of the amount of tax assessed.
(3) The assessment or reassessment under sub-section (1) shall be made within a period of two calendar years from the date of commencement of the proceedings under the said sub-section."
13. Perusal of the above quoted provisions would show that period prescribe for exercising jurisdiction by the Commissioner is to start from the date of order of assessment or from the date of judgment or order of Court or Tribunal. The language used in Section 22 of the Act of 2005 is plain and unambiguous that the Commissioner can exercise jurisdiction under Section 21(1) only when there is an order of assessment and therefore, the statute provides different period of limitation. In WP (T) No. 77/2017 (M/s. Tata Teleservices Limited vs. State of CG & Ors.) the Court has interpreted the word 'order' as under:-
"22. The word "order" employed in Section 22(1) of the VAT Act is important. The word "order" has not been defined in the VAT Act. The Code of Civil Procedure, 1908 is not applicable in the proceeding of the VAT Act, but aid can be taken from the said Code. Sub-section (14) of Section 2 of the Code of Civil Procedure, 1908 defines, "order" means the formal expression of any decision of a Civil Court which is not a decree". Black's Law Dictionary (Eighth Edition) also defines "order" as under:-
"order, n. 1. A command, direction, or instruction. Se e-MANDATE (1). 2. A written direction or command delivered by a court or judge. The word generally embraces final decrees as well as interlocutory directions or commands.-Also termed court order; judicial order. See MANDAMUS. [Cases: Federal Civil Procedure 928; Motions 46, C.J.S. Motions and Orders §§ 1-3, 13, 50, 59.] "An order is the mandate or determination of the court upon some subsidiary or collateral matter arising in an action, not disposing of the merits, but adjudicating a preliminary point or directing some step in the proceedings." 1 Henry Campbell Black, A Treatise on the Law of Judgments § 1, at 5 (2d ed. 1902). "While an order may under some circumstances amount to a judgment, they must be distinguished, owing to the different consequences flowing from them, not only in the matter of enforcement and appeal but in other respects, as, for instance, the time within which proceedings to annul them must be taken. Rulings on motions are ordinarily orders rather than judgments. The class of judgments and of decrees formerly called interlocutory is included in the definition given in [modern codes] of the word 'order.'" 1. A.C. Freeman, A Treatise of the Law of Judgments § 19, at 28 (Edward W. Tuttle ed., 5th ed. 1925)."
25. The legislature is quite competent to create a legal fiction, in other words, to enact a deeming provision for the purpose of assuming existence of a fact which does not really exist. (See J.K. Cotton Spinning & Weaving Mills Ltd. v. Union of India.)
26. The Supreme Court in the matter of Rishabh Agro Industries Ltd. v. PNB Capital Services Ltd. defined the word "deemed" with reference to the provisions of the Companies Act as under:-
"The word "deemed" used in the section would thus mean, "supposed", "considered", "construed", "thought", "taken to be" or "Presumed".
27. The Supreme Court in the matter of Harish Tandon v. Additional District Magistrate, Allahabad has held that full effect has to be given to the legal fiction created by statute and held as under:-
"13. The role of a provision in a statute creating legal fiction is by now well settled. When a statute creates a legal fiction saying that something shall be deemed to have been done which in fact and truth has not been done, the court has to examine and ascertain as to for what purpose and between what persons such a statutory fiction is to be resorted to. Thereafter full effect has to be given to such statutory fiction and it has to be carried to its logical conclusion...."
28. James, L.J. in levy, In re, exp Walton 8 speaks on deeming fiction as:
"... When a statute enacts that something shall be deemed to have been done, which in fact and [in] truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to."
29. In the matter of Szoma v. Secy. of State for Work and Pensions 9 the Court held:
"25. ... it would ... be quite wrong to carry this fiction beyond its originally intended purpose so as to deem a person in fact lawfully here not to be here at all. 'the intention of a deeming provision, in laying down a hypothesis, is that the hypothesis shall be carried as far as necessary to achieve the legislative purpose, but no further'.
14. The Court has further held that in order to invoke Section 22(1) of the Act of 2005, there must be an order of assessment by the Assessing Officer in contradistinction to Section 22(1) of the Act of 2005, which is a deemed assessment. After recording that held, thus the jurisdictional fact and condition precedent for invoking provisions of Section 22(1) of the Act of 2005 i.e. the order of assessment, was not in existence on the date of issuing notice for reassessment under Section 22(1) of the Act of 2005. Therefore, the Assessing Officer was jurisdiction-less to initiate reassessment proceedings under Section 22(1) of the Act of 2005 and the order of reassessment ultimately passed is without jurisdiction and without authority of law and de hors the provisions contained in Section 22(1) of the Act of 2005, as such, it deserves to be quashed.
15. The aforementioned order passed by the learned Single Judge was challenged by the respondent State by filing writ appeals bearing Nos. 687/2018, 691/2018 & 705/2018, and the Division Bench of this High Court considering the relevant provisions of the Act of 2005 dismissed the writ appeals vide CAV order dated 18.8.2022. Relevant part of the order reads thus:-
"29. Rule 20 under Chapter VI of VAT Rules, 2006 relates to "Returns". Rule 20(2)(d), on which reliance is placed by Mr. Sharma was inserted by notification dated 02.06.2011. Subsequently, by notification dated 21.10.2011, the words "in two copies" after the words "form 17-A" in Rule 20(2)(d) were inserted. Rule 20(2)(d) provides that after submission of electronic return, form 17-A in two copies be submitted along with copy of the challan of the tax deposited within thirty days in the relevant circle and acknowledgment has to be obtained. Rule 20(2)(e) provides that if the acknowledgment prescribed under clause (d) is not obtained, then it will be deemed that no return has been filed. Argument of Mr. Sharma that the date of acknowledgment of submission of electronic return is the date of the order of deemed assessment, and therefore, it is incorrect to say that there is no date of order of assessment, is misconceived. The acknowledgment obtained for submission of return cannot be construed to mean that the acknowledgment had resulted in an order of assessment.
30. In D. Saibaba (supra), in the context of commencement of the period of limitation for filing review petition, expression "date of that order" as occurring in Section 48AA of the Advocates Act, 1961, the Hon'ble Supreme Court observed that the same has to be construed as meaning the date of communication or knowledge of the order to the review petitioner and that the knowledge, either actual or constructive, of the party affected by such a decision, is an essential element which must be satisfied before the decision can be brought into force. The above decision has no application in the facts of the case.
31. In MCD (supra), the Hon'ble Supreme Court had occasion to consider what is the meaning of the word "made". It was observed that the meaning of the word would depend upon its text and context as also the purport and object it seeks to achieve. It was also observed that if the intention or design of the statutory provision was to protect the interest of the person adversely affected, by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as commencing from the date of communication of the order. But if it is a limitation for a competent authority to make an order the date of exercise of that power and in the case of exercise of suo moto power over the subordinate authorities' orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this case also does not have any application to the facts of the present case."
16. In this writ petition also the powers Invoked by the authority concerned under Section 22(1) of the Act of 2005 is questioned. Respondents in their reply to writ petition have not denied contention of petitioner that there is no specific order of assessment. In fact, respondents have pleaded that the question of law raised by the petitioner relying upon the order passed in WPT No. 77/2017 and other connected writ petitions, is still pending before the Division Bench. It is not the case of respondent that there is an order of assessment. From the above discussions it is clear that there was no order of assessment, which is a condition precedent to invoke jurisdiction under Section 22(1) of the Act of 2005 in the case of present petitioner also.
17. In view of above facts and the order passed in W.A. No. 687/2018 and other two connected writ appeals, I am of the view that in absence of there being any order of assessment, respondent No. 4 Commercial Tax Officer, Rajnandgaon was not having any jurisdiction to pass the orders of reassessment under Section 22(1) of the Act of 2005 and therefore, the same are liable to be quashed.
18. In the result, the writ petitions are allowed. Impugned orders are quashed.
