w w w . L a w y e r S e r v i c e s . i n



Sheo Shakti Cement Industries, Hazaribagh v/s State of Jharkhand


Company & Directors' Information:- CEMENT CORPORATION OF INDIA LIMITED [Active] CIN = U74899DL1965GOI004322

Company & Directors' Information:- J. K. CEMENT LIMITED. [Active] CIN = L17229UP1994PLC017199

Company & Directors' Information:- T T G INDUSTRIES LIMITED [Active] CIN = U27209TN1987PLC014169

Company & Directors' Information:- A L M INDUSTRIES LIMITED [Active] CIN = U19111DL1996PLC129067

Company & Directors' Information:- A L M INDUSTRIES LIMITED [Active] CIN = U74110DL1996PLC129067

Company & Directors' Information:- S R K INDUSTRIES LIMITED [Active] CIN = L17121MH1991PLC257750

Company & Directors' Information:- N K INDUSTRIES LIMITED [Active] CIN = L91110GJ1987PLC009905

Company & Directors' Information:- K L R INDUSTRIES LIMITED [Active] CIN = U28939TG2002PLC038416

Company & Directors' Information:- T S I INDUSTRIES PRIVATE LIMITED [Under Process of Striking Off] CIN = U18101HR1997PTC034478

Company & Directors' Information:- B L A INDUSTRIES PRIVATE LIMITED. [Active] CIN = U10200MH1964PTC162314

Company & Directors' Information:- R P INDUSTRIES PRIVATE LIMITED [Active] CIN = U27100GJ2011PTC075812

Company & Directors' Information:- A G INDUSTRIES PVT LTD [Active] CIN = U27300HR1991PTC031378

Company & Directors' Information:- H. J. INDUSTRIES (INDIA) PRIVATE LIMITED [Active] CIN = U17120GJ2010PTC060769

Company & Directors' Information:- G R S INDUSTRIES LIMITED [Active] CIN = U00000PB2005PLC029159

Company & Directors' Information:- T S L INDUSTRIES LIMITED [Active] CIN = L65999WB1994PLC065255

Company & Directors' Information:- M F B INDUSTRIES LIMITED [Active] CIN = U31401TN1989PLC018274

Company & Directors' Information:- A C M E INDUSTRIES LIMITED [Dormant under section 455] CIN = U19119DL1992PLC048914

Company & Directors' Information:- CEMENT INDIA LTD [Active] CIN = U26942AS1994PLC004154

Company & Directors' Information:- M N INDUSTRIES PRIVATE LIMITED [Active] CIN = U24100TG2012PTC079737

Company & Directors' Information:- S K INDUSTRIES PVT LTD [Active] CIN = U74899DL1991PTC045572

Company & Directors' Information:- E A P INDUSTRIES LTD [Active] CIN = U25206WB1956PLC023072

Company & Directors' Information:- S R V E INDUSTRIES LIMITED [Active] CIN = U03210TZ2006PLC012577

Company & Directors' Information:- Z H INDUSTRIES PRIVATE LIMITED [Active] CIN = U45200DL2014PTC265453

Company & Directors' Information:- P AND P INDUSTRIES LIMITED [Strike Off] CIN = U21010MH1992PLC068885

Company & Directors' Information:- N G INDUSTRIES LTD [Active] CIN = L74140WB1994PLC065937

Company & Directors' Information:- S L INDUSTRIES P. LTD. [Active] CIN = U15331WB1989PTC047543

Company & Directors' Information:- T R A T INDUSTRIES LIMITED [Active] CIN = U25199KL1996PLC010148

Company & Directors' Information:- B R INDUSTRIES LIMITED [Active] CIN = U74899DL1995PLC067120

Company & Directors' Information:- H. V. R. INDUSTRIES PRIVATE LIMITED [Active] CIN = U27100DL2010PTC200428

Company & Directors' Information:- N R C INDUSTRIES LIMITED [Active] CIN = U51909PB1985PLC006558

Company & Directors' Information:- S N L INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U17115RJ1994PTC008053

Company & Directors' Information:- A R INDUSTRIES PVT LTD [Active] CIN = U27101HR1995PTC032569

Company & Directors' Information:- A M S CEMENT PVT LTD [Active] CIN = U26942ML1995PTC004606

Company & Directors' Information:- G V G INDUSTRIES PRIVATE LIMITED [Active] CIN = U17111TZ1980PTC006887

Company & Directors' Information:- G V INDUSTRIES INDIA PRIVATE LIMITED [Active] CIN = U74900TG2014PTC096387

Company & Directors' Information:- G S M INDUSTRIES PRIVATE LIMITED [Active] CIN = U02001DL2002PTC117443

Company & Directors' Information:- B G INDUSTRIES LTD [Active] CIN = U26921ML1980PLC001830

Company & Directors' Information:- H P CEMENT AND INDUSTRIES PVT LTD [Active] CIN = U26942AS1995PTC004559

Company & Directors' Information:- P K INDUSTRIES PRIVATE LIMITED [Active] CIN = U51900DL2012PTC241654

Company & Directors' Information:- M D INDUSTRIES PRIVATE LIMITED [Active] CIN = U91110GJ1994PTC022025

Company & Directors' Information:- S. P. CEMENT PRIVATE LIMITED [Active] CIN = U26940MP2006PTC018404

Company & Directors' Information:- L C INDUSTRIES PRIVATE LIMITED [Active] CIN = U15122UP2013PTC055697

Company & Directors' Information:- S. P. CEMENT PRIVATE LIMITED [Active] CIN = U01531MP2006PTC018404

Company & Directors' Information:- R M G INDUSTRIES PRIVATE LIMITED [Active] CIN = U18100TG1993PTC016220

Company & Directors' Information:- G. A. INDUSTRIES PRIVATE LIMITED [Active] CIN = U15435MH2005PTC151817

Company & Directors' Information:- I W D W INDUSTRIES LTD. [Strike Off] CIN = U30099WB1990PLC050177

Company & Directors' Information:- P A S INDUSTRIES INDIA PRIVATE LIMITED [Active in Progress] CIN = U17121TZ2005PTC012171

Company & Directors' Information:- V AND S INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL1990PTC039251

Company & Directors' Information:- M K J INDUSTRIES PRIVATE LIMITED [Active] CIN = U19111UP1989PTC010468

Company & Directors' Information:- S S F INDUSTRIES LIMITED [Active] CIN = U25190BR1988PLC003160

Company & Directors' Information:- P B INDUSTRIES PRIVATE LIMITED [Active] CIN = U29120MP1994PTC008840

Company & Directors' Information:- R & M INDUSTRIES PRIVATE LIMITED [Active] CIN = U24297TN1972PTC006185

Company & Directors' Information:- H S INDUSTRIES PRIVATE LIMITED [Active] CIN = U23209MH2020PTC348174

Company & Directors' Information:- R. L. F. INDUSTRIES LIMITED [Active] CIN = U51909DL1983PLC015262

Company & Directors' Information:- U K INDUSTRIES PRIVATE LIMITED [Active] CIN = U24241WB1988PTC044355

Company & Directors' Information:- M G I INDUSTRIES PVT LTD [Active] CIN = U27310GJ2006PTC048707

Company & Directors' Information:- A D INDUSTRIES PRIVATE LIMITED [Active] CIN = U18101WB2008PTC131561

Company & Directors' Information:- V J INDUSTRIES PRIVATE LIMITED [Active] CIN = U29253KA2009PTC050226

Company & Directors' Information:- V T INDUSTRIES PVT LIMITED [Active] CIN = U29150WB1985PTC039217

Company & Directors' Information:- G R INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U34300PB1996PTC018671

Company & Directors' Information:- R S V INDUSTRIES PRIVATE LIMITED [Active] CIN = U52399MH2008PTC180489

Company & Directors' Information:- R. J. CEMENT INDUSTRIES PRIVATE LIMITED [Active] CIN = U51909WB1997PTC083205

Company & Directors' Information:- B M INDUSTRIES PRIVATE LIMITED [Active] CIN = U17000MH1997PTC109621

Company & Directors' Information:- H M B INDUSTRIES PVT LTD [Active] CIN = U24297GJ1996PTC070418

Company & Directors' Information:- A G B INDUSTRIES INDIA PRIVATE LIMITED [Strike Off] CIN = U21012TZ2008PTC014753

Company & Directors' Information:- K B R INDUSTRIES PRIVATE LIMITED [Active] CIN = U27107DL1996PTC079915

Company & Directors' Information:- SHEO INDUSTRIES PRIVATE LIMITED [Active] CIN = U28113OR2013PTC017345

Company & Directors' Information:- B N INDUSTRIES PRIVATE LIMITED [Active] CIN = U67120AS1994PTC004273

Company & Directors' Information:- A J INDUSTRIES PRIVATE LIMITED [Active] CIN = U17120MH2004PTC145040

Company & Directors' Information:- S. A. A INDUSTRIES PRIVATE LIMITED [Active] CIN = U01549TZ1997PTC007927

Company & Directors' Information:- K K S K INDUSTRIES PRIVATE LIMITED [Active] CIN = U19201TZ1997PTC007687

Company & Directors' Information:- C R I INDUSTRIES PRIVATE LIMITED [Amalgamated] CIN = U29120TZ2002PTC010129

Company & Directors' Information:- A C T INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL1984PTC018724

Company & Directors' Information:- S D B INDUSTRIES LIMITED [Active] CIN = U27107MP1996PLC010394

Company & Directors' Information:- M M INDUSTRIES PRIVATE LIMITED [Active] CIN = U31300CT2008PTC020916

Company & Directors' Information:- C J INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U25209MH1998PTC116707

Company & Directors' Information:- N P INDUSTRIES LTD [Strike Off] CIN = U15549PB1989PLC009426

Company & Directors' Information:- SHAKTI CORPORATION INDIA LIMITED [Active] CIN = U27320PB2012PLC036331

Company & Directors' Information:- R. D. G. INDUSTRIES PRIVATE LIMITED [Active] CIN = U26960DL2008PTC182480

Company & Directors' Information:- R B INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U28999DL2008PTC177248

Company & Directors' Information:- A. G. INDUSTRIES LIMITED [Strike Off] CIN = U25201UP1994PLC017291

Company & Directors' Information:- M R INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74900UP2008PTC036443

Company & Directors' Information:- R D I INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74900DL1995PTC065508

Company & Directors' Information:- Y AND M CEMENT (INDIA) PRIVATE LIMITED [Active] CIN = U26940MH2006PTC161339

Company & Directors' Information:- S D CEMENT PRIVATE LIMITED [Active] CIN = U74899DL1995PTC072298

Company & Directors' Information:- V G INDUSTRIES PRIVATE LIMITED [Active] CIN = U15139JK2015PTC004570

Company & Directors' Information:- SHAKTI INDUSTRIES PVT LTD [Active] CIN = U29299WB1983PTC036437

Company & Directors' Information:- P B CEMENT PRIVATE LIMITED [Active] CIN = U36900WB2009PTC138825

Company & Directors' Information:- S N INDUSTRIES PRIVATE LIMITED [Active] CIN = U29211UP1951PTC002319

Company & Directors' Information:- W W I INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U29300MH1997PTC112589

Company & Directors' Information:- K G N CEMENT PRIVATE LIMITED [Active] CIN = U26942OR1991PTC002930

Company & Directors' Information:- A S K CEMENT PRIVATE LIMITED [Active] CIN = U26940RJ2012PTC040014

Company & Directors' Information:- B V R INDUSTRIES PRIVATE LIMITED [Active] CIN = U28999CT2020PTC010570

Company & Directors' Information:- S R P INDUSTRIES LIMITED [Amalgamated] CIN = U00061BR1984PLC002023

Company & Directors' Information:- V K CEMENT LTD [Active] CIN = U26942PB1994PLC014122

Company & Directors' Information:- J D CEMENT PVT LTD [Active] CIN = U26941CH1982PTC004960

Company & Directors' Information:- B S CEMENT PVT. LTD. [Active] CIN = U26942OR1986PTC001767

Company & Directors' Information:- C P INDUSTRIES PVT LTD [Strike Off] CIN = U29303MP1949PTC000846

Company & Directors' Information:- J B INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74999MH2013PTC245506

Company & Directors' Information:- S J V INDUSTRIES LTD [Amalgamated] CIN = U15421WB1982PLC035521

Company & Directors' Information:- V V INDUSTRIES PVT LTD [Strike Off] CIN = U99999DL1980PTC010427

Company & Directors' Information:- K K INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U65100DL1982PTC013046

Company & Directors' Information:- A T C INDUSTRIES LTD [Strike Off] CIN = U27109AS1984PLC002201

Company & Directors' Information:- P H P CEMENT INDUSTRIES PVT LTD [Strike Off] CIN = U26900MH1981PTC024812

Company & Directors' Information:- M P CEMENT PVT LTD [Strike Off] CIN = U26942CT1984PTC002333

Company & Directors' Information:- J K CEMENT PVT LTD [Strike Off] CIN = U26941GJ1981PTC004569

Company & Directors' Information:- N V INDUSTRIES PVT LTD [Active] CIN = U51909WB1953PTC020952

Company & Directors' Information:- A TO Z INDUSTRIES PVT LTD [Strike Off] CIN = U31908AS1987PTC002804

Company & Directors' Information:- J D CEMENT LIMITED [Strike Off] CIN = U26943DL1980PLC010512

Company & Directors' Information:- J S K CEMENT PRIVATE LIMITED [Active] CIN = U26940RJ2012PTC039836

Company & Directors' Information:- J G CEMENT PVT LTD [Strike Off] CIN = U14106PB1993PTC013626

Company & Directors' Information:- L K INDUSTRIES PRIVATE LIMITED [Active] CIN = U17291MH2012PTC233546

Company & Directors' Information:- G S C INDUSTRIES PRIVATE LTD [Active] CIN = U92114DL1956PTC002616

Company & Directors' Information:- G G INDUSTRIES PRIVATE LIMITED [Active] CIN = U27320UP1969PTC003282

Company & Directors' Information:- N G C M (INDUSTRIES) LTD [Dissolved] CIN = U19209WB1979PLC032019

Company & Directors' Information:- R. M. CEMENT COMPANY PRIVATE LIMITED [Active] CIN = U26941CT2009PTC021396

Company & Directors' Information:- P R INDUSTRIES PVT LTD [Active] CIN = U21014DL1971PTC005738

Company & Directors' Information:- A R CEMENT CO PVT LTD [Strike Off] CIN = U02694MP1982PTC002042

Company & Directors' Information:- M S V INDUSTRIES PRIVATE LIMITED [Active] CIN = U29309TN2020PTC138957

Company & Directors' Information:- K L CEMENT PRIVATE LIMITED [Strike Off] CIN = U26940WB2008PTC127270

Company & Directors' Information:- S G R INDUSTRIES PVT LTD [Strike Off] CIN = U25199WB1948PTC016397

Company & Directors' Information:- G K S INDUSTRIES PVT LTD [Strike Off] CIN = U24119OR1982PTC001128

Company & Directors' Information:- M C A CEMENT PRIVATE LIMITED [Active] CIN = U26943RJ1994PTC008065

Company & Directors' Information:- B M K INDUSTRIES PRIVATE LIMITED [Active] CIN = U17100MH1948PTC006398

Company & Directors' Information:- T C G INDUSTRIES PRIVATE LIMITED [Converted to LLP] CIN = U13200MH1958PTC011079

Company & Directors' Information:- Y K INDUSTRIES PRIVATE LIMITED [Active] CIN = U19115UP2012PTC051151

Company & Directors' Information:- R S CEMENT PRIVATE LIMITED. [Active] CIN = U74899DL1992PTC047484

Company & Directors' Information:- J M INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U05002UP1952PTC002456

Company & Directors' Information:- SHAKTI INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U31909DL2000PTC105477

Company & Directors' Information:- S. K. CEMENT PRIVATE LIMITED [Active] CIN = U26960WB2012PTC187806

Company & Directors' Information:- A K S INDUSTRIES PVT LTD [Active] CIN = U27201WB1946PTC013433

Company & Directors' Information:- S K INDUSTRIES LIMITED [Under Process of Striking Off] CIN = U29248PN1948PLC001948

Company & Directors' Information:- V N R INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U21090AP2012PTC081525

Company & Directors' Information:- A K INDUSTRIES PVT LTD [Active] CIN = U51109WB1944PTC011764

Company & Directors' Information:- R. A. M INDUSTRIES PRIVATE LIMITED [Active] CIN = U17120MH2014PTC254820

Company & Directors' Information:- S. B. INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74900PN2012PTC144181

Company & Directors' Information:- A & P INDUSTRIES PRIVATE LIMITED [Active] CIN = U36935TG2014PTC095781

Company & Directors' Information:- C & N INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U40200TG2014PTC095187

Company & Directors' Information:- B S B INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U45200TG2013PTC088059

Company & Directors' Information:- R A R INDUSTRIES PRIVATE LIMITED [Active] CIN = U74900TG2016PTC103684

Company & Directors' Information:- K S A B INDUSTRIES PRIVATE LIMITED [Active] CIN = U51909WB2012PTC181903

Company & Directors' Information:- S V S INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U36100JK2013PTC003808

Company & Directors' Information:- R D M INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U31100DL2013PTC252294

Company & Directors' Information:- D & D CEMENT PRIVATE LIMITED [Strike Off] CIN = U26941GJ2009PTC057912

Company & Directors' Information:- V. A. R. INDUSTRIES PRIVATE LIMITED [Active] CIN = U18209DL2020PTC369202

Company & Directors' Information:- U K J INDUSTRIES PRIVATE LIMITED [Active] CIN = U21094DL2020PTC370720

Company & Directors' Information:- I N C INDUSTRIES PRIVATE LIMITED [Active] CIN = U74999MH2020PTC350470

Company & Directors' Information:- S V INDUSTRIES PVT LTD [Strike Off] CIN = U27104WB1960PTC024715

Company & Directors' Information:- B P K INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U99999MH1960PTC011841

Company & Directors' Information:- INDUSTRIES (INDIA) PRIVATE LIMITED [Under Process of Striking Off] CIN = U51109BR1946PTC000228

Company & Directors' Information:- M A INDUSTRIES PVT LTD [Strike Off] CIN = U15412WB1950PTC019030

Company & Directors' Information:- INDUSTRIES INDIA PRIVATE LIMITED [Under Process of Striking Off] CIN = U60200BR1946PTC000035

Company & Directors' Information:- B M K INDUSTRIES PVT LTD [Active] CIN = U99999MH1948PTC006393

Company & Directors' Information:- S K INDUSTRIES PVT LTD [Under Process of Striking Off] CIN = U99999MH1948PTC006932

Company & Directors' Information:- SHAKTI INDUSTRIES PRIVATE LIMITED [Dissolved] CIN = U99999MH1961PLC012220

Company & Directors' Information:- S K INDUSTRIES PVT LTD [Active] CIN = U15142PN1948PTC006932

Company & Directors' Information:- V B C INDUSTRIES LTD. [Not available for efiling] CIN = U99999AP2000PTC910431

    Writ Petition (Tribunal) No. 7835 of 2011, 7819 of 2011

    Decided On, 05 February 2020

    At, High Court of Jharkhand

    By, THE HONOURABLE MR. JUSTICE H.C. MISHRA & THE HONOURABLE MR. JUSTICE DEEPAK ROSHAN

    For the Appearing Parties: Amrita Sinha, Atanu Banerjee, Moushmi Chatterjee, Advocates.



Judgment Text


1. As both these writ applications involve the same question of law, they have been heard together and are being disposed of by this common Judgment.

2. Heard learned counsel for the petitioner and learned counsel for the State in both the Writ applications.

3. The matters under challenge are the review of the assessment of the sales tax, relating to the assessment years 2004-05 and 2005-06. The writ petitioner made some inter-State sales to unregistered dealers. For the inter-State transactions, the petitioner was exempted from the State tax under Section 7 (1-a) of the Bihar Finance Act, 1981, (herein after referred to as the 'State Act'), but was liable to pay tax under Section 8 of the Central Sales Tax Act (herein after referred to as the 'CST Act'). For the inter-State transactions made to the registered dealers, there is concessional rate of tax provided under Section 8 (1) of the CST Act, whereas for the inter-State transactions made to the unregistered dealers, higher rate of tax is provided under Section 8

(2) of the CST Act, which at the relevant time read as follows:-

"8. Rates of tax on sales in the course of inter-State trade or commerce,-

(1) ---------------.

(2) The tax payable by any dealer on his turnover in so far as the turnover or any part thereof relates to the sales of goods in the course of inter-State trade or commerce not falling within sub section (1) -

(a) in the case of declared goods, shall be calculated at twice the rate applicable to the sale or purchase of such goods inside the appropriate State; and

(b) in the case of goods other than declared goods, shall be calculated at the rate of ten percent or at the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever is higher;

and for the purpose of making any such calculation any such dealer shall be deemed to be a dealer liable to pay tax under the tax law of the appropriate State, notwithstanding that he, in fact, may not be so liable under that law."

4. The assessment of the tax was accordingly made by the Assessing Authority on 08.12.2005, and the said tax was also paid by the petitioner. Subsequently, the matter was reviewed pursuant to an audit objection, and after getting the consent of the Commissioner of the Commercial Taxes on 23.06.2009, and the assessment order was reviewed by the impugned order dated 01.10.2009, by the Assessing Authority, imposing surcharge on the assessed tax.

5. The audit objection has been brought on record, which shows that since the petitioner was liable to pay tax on the inter-State transactions with unregistered dealers, at the rate applicable as per the State Act, the petitioner was also liable to pay surcharge which was not levied at the time of passing the original assessment order. On the basis of this audit objection, notice was issued under Section 47 of the Bihar Finance Act, read with Rule 32 of the Bihar Sales Tax Rules, 1983, (herein after referred to as the 'Rules'), to the petitioner. The petitioner responded to the notice and the only point taken was that no surcharge was payable under the CST Act, and since transaction was taxable under the CST Act, there was no question of making the payment of surcharge. The review order was however, passed, imposing the surcharge upon the petitioner to the tune of Rs.4,89,441.10 paise, for both the assessment years taken together. The petitioner challenged the aforesaid order before the Appellate Authority, and after failing before the Appellate Authority, before the Commercial Taxes Tribunal, Ranchi, by filing revision petition Nos. Hz 77 and 78 of 2010, which were also dismissed by the Judgment dated 25.10.2011, holding that surcharge is nothing, but a higher percentage of tax. Aggrieved thereby, these Writ applications have been filed by the petitioner.

6. Learned counsel for the petitioner placing reliance on Section 47 of the Bihar Finance Act, submitted that for the purpose of review it was necessary that there should be a mistake apparent from the record, but since in the present case surcharge was not leviable under the CST Act, there was no mistake while making the original assessment of tax, and as such, no case for review was made out. Learned counsel also submitted, placing reliance upon Rule 32 of the Rules, that the review was permissible only after recording the reasons for doing so. It is submitted by learned counsel that in the review order dated 01.10.2009, whereby the surcharge was imposed upon the petitioner, no reason whatsoever has been assigned by the Assessing Authority for reviewing the order, showing his independent application of mind, except repeating the audit objection.

7. Placing reliance on Section 8 (2) of the CST Act, learned counsel for the petitioner has further submitted that in cases of the inter-State transactions made with the unregistered dealers, only "the tax" is leviable under Section 8 (2) of the CST Act. There is no mention of 'surcharge' under the CST Act. It is submitted that the word "tax" is not defined under the CST Act, rather it is defined under Section 2 (x) of the State Act, which states that the tax includes sales or purchase tax levied under Section 3 as also additional tax levied under Section 6 of this Act. It is submitted by learned counsel that provision for surcharge is under Section 5 of the State Act, and it is not included within the definition of 'tax' given in Section 2 (x) of the aforesaid Act.

8. In support of her contention that the review order without recording the reasons is bad in the eyes of law, once it is specifically provided in the Rules, learned counsel has placed reliance upon the decision of the Hon'ble Madras High Court in Seshasayee Paper and Boards Ltd. Vs. Commissioner of Income-Tax & Ors.,2003 SCCOnLineMad 1000 , as also upon the decision the of the Hon'ble Calcutta High Court in Apex Credit Pvt. Ltd. & Anr. Vs. Income Tax Officer, Kolkata & Ors.,2016 SCCOnLineCal 8192 , wherein it has been held that if the law requires the reasons to be recorded, any action without recording the reason is bad in the eyes of law.

9. Learned counsel for the State has also argued at length on the questions raised by the learned counsel for the petitioner. It is also submitted by learned counsel for the State that sufficient reasons have been stated in the review order by the Assessing Authority, and there is no illegality in the review order on this score.

10. We however, do not propose to enter into other questions of law raised by the learned counsel for the petitioner, in view of the express wordings of Rule 32 of the Bihar Sales Tax Rules, which reads as follows:-

"32. Review.- (1) When any authority appointed under section 9 reviews under section 47 any order passed under the Act it shall record reasons for doing so.

*** *** *** ."

11. Since this Rule clearly says that before passing the review order under the Act, the reasons are required to be recorded, which is a mandatory provision, the review order needs to be looked into, to see whether it passes the test of Rule 32 of the Rules. The relevant portion of the review order, shows that the only reason given therein reads as follows:-

"LANGUAGE"12. It is submitted by the learned counsel for the State that when the assessee admits that he has paid the tax at the maximum rate prescribed under the State Act, sufficient reason has been given by the Assessing Authority to impose the surcharge on the transactions made by the petitioner, particularly when the original assessment order is not challenged.

13. We cannot subscribe to the view of the learned counsel for the State on this count. We find that what has been stated by the Assessing Authority in his review order, is only that in view of the objection raised by the Audit Team, the review order is passed imposing the surcharge. No reason whatsoever has been given by the Assessing Authority, applying his own independent mind, whether in the inter-State transactions made with the unauthorized dealers, the surcharge is also payable by the assessee, and whether in failing to levy such surcharge, there was any mistake apparent on the record. In absence of any such reason given by the Assessing Authority, showing the application of his own independent mind, we are of the considered view that only recording the audit objection cannot mean the independent reasoning given by the Assessing Authority. When the Rule requires the Assessing Authority to record his reasons in writing, that means the Assessing Authority has to make out his own subjective satisfaction about the objection raised by the audit team, and if the Assessing Authority finds that the objection raised by the Audit Team is sustainable, he shall proceed to review order. He cannot proceed to review the order only on the basis of the objection raised by the Assessing Authority, without application of his own independent mind. Rule 32 of the aforesaid Rules is absolutely clear in these terms.

14. Since, we find that no reason has been assigned by the Assessing Authority in the review order dated 01.10.2009, the same cannot be sustained in the eyes of law. Accordingly, both the review orders dated 01.10.2009, with respec

Please Login To View The Full Judgment!

t to the assessment years 2004-05 and 2005-06, as challenged in both these writ applications are hereby, quashed. Consequently, the impugned order / Judgment passed by the Appellate Authority and the Tribunal, are also, set aside. 15. By order dated 28.03.2012, passed in these writ applications, while staying the levy of surcharge, this Court had directed the petitioner to furnish bank guarantee which was accordingly, furnished by the petitioner. Subsequently, by order dated 06.12.2018, the stay order was vacated, and the respondent-State was permitted to invoke the said bank guarantee, subject to the result of the writ applications. 16. In view of the fact that both these writ applications are allowed, setting aside the review orders imposing the surcharge, the petitioner shall be entitled to the refund of the entire amount with due interest thereon, or adjustment of the same against his future liability of the tax. 17. Both these writ applications are accordingly, allowed with the directions as above.
O R