Reliance Infratel Ltd v. The State Of Bihar And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.17407 of 2011 ====================================================== Reliance Infratel Ltd, a Company Registered Under The Companies Act Having Its Registered Office At H Block, First Floor, Dhirubhai Ambani Knowledge City, Navi Mumbai-400710 And Circle Office At 15th Floor, Biscoman Tower, Gandhi Maidan W. Patna- 800001, Through Its Authorized Signatory Shri Mukesh Kumar Jain. Son Of Shri Bholu Ram Jain, Resident Of House No 58 , Shakti Nagar Colony , Gopalpura , Bypass Road, Jaipur , ... ... Petitioner/s

Versus

1.

The State of Bihar through the Principal Secretary, Department of Finance, Government of Bihar, Patna.

2.

The Commissioner , Commercial Tax Department , Government Of Bihar , Patna.

3.

The Deputy Commissioner , Commercial Tax Department, Patliputra Circle , Patna.

4.

The Assistant Commissioner , Commercial Tax Department, Patliputra Circle , Patna.

5.

The Commercial Tax Officer , Patliputra Circle , Patna. ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Ashish Giri, Advocate.

For the Respondent/s :

Mr.Vikash Kumar, SC 11.

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 09-12-2020 The petitioner has prayed for the following relief(s):- "(i) To hold and declare that the energy generated and consumed for the purpose of transmission of a message does not fall under the definition of energy as provide under Section 2(C) of the Bihar Electricity Duty Act, 2003 read with Section 3(3) and 3(1AA) of the Indian Telegraph Act and

2/5 therefore the act not applicable to the transaction of the petitioner.

ii) To issue an appropriate writ/order/direction in the nature of Certiorari for quashing the letter bearing no.898 dated 20.09.2011 (Annexure-9) issued by the respondent Deputy Commissioner, Commercial Tax Department address to the Branch Manager, H.D.F.C. Bank, Patna whereby and where under the Branch Manager has been directed to handover a draft of Rs. 56,05,557/- from the account of the petitioner bearing no. 01860310000444 on alleged failure for payment of electricity duty by the petitioner for the period September 2007 to 31.12.2010.

iii) To issue an appropriate writ/order/direction in the nature of Certiorari for quashing the demand notice dated 21.03.2011 (Annexure-5) and assessment order dated 21.03.20111 (Annexure-5) whereby and whereunder the respondent Deputy Commissioner, Commercial Tax Department has made an ex parte assessment of the liability of the petitioner to pay electricity duty for the energy consumed by the diesel generation set for the period September 2007 to 31.12.2010 and has raised a demand of Rs.5605557.00/-.

iv) To issue an appropriate writ/order/direction in of Mandamus directing the respondent authorities to refund the amount of Rs. 56,05,557.00/- unlawfully collected from the account of the petitioner in purported excise of power under the Act in the light of the impugned orders dated 20.09.2011 and 21.03.2011.

3/5 v) To any other relief or reliefs for which the the petitioner is found entitled in the facts and circumstances of the case."

Mr. Ashish Giri, learned counsel for the petitioner, points out that unlike other cases, writ petitioner had deposited the entire component of the electricity duty, in fact, necessary averments made out in the writ petition reads as under:- "19. That despite repeated request from the petitioner company seeking time to take necessary orders from this Hon'ble Court yet the authorities have on 22.09.2011 forcefully recovered the unlawful demand of electricity duty to the tune of Rs. 5605557/- from the account of the petitioner which is wholly illegal and arbitrary exercise of the power."

to which there is no denial by the State.

Shri Giri prays that this Court can direct the refund of the amount.

Shri Vikash Kumar, learned Standing Counsel-11, states that, perhaps, proceedings under the newly enacted legislation may have been initiated and if not already done, shall positively be done within the current financial year ( 2020-21). Needless to add, it is always open for the authorities to initiate action in accordance with law under the amended Statute but, however, if the needful is not done within

4/5 this financial year, the amount deposited by the petitioner shall be refunded on or before 30th April, 2021.

We clarify that this order shall become operative only and only if no action is taken against the petitioner under the provisions of the amended Statute.

It is not in dispute that the impugned action is based on the notification bearing SO No. 14 dated 4th March, 2005. It is also not in dispute that the validity of the said Notification, subject matter of adjudication of the present lis, was struck down by a co-ordinate Bench of this Court vide decision rendered in Bihar Sugar Mills Association, a branch of India Sugar Mills Association, New Delhi & Ors. Vs. The State of Bihar & Ors; 2009(4) PLJR416.

It is also not in dispute that assailing the same, the State preferred an Appeal before Hon'ble the Apex Court, bearing Civil Appeal No. 2570 of 2010, titled as State of Bihar & Ors. vs. Bihar Sugar Mills & Ors., which, on account of certain intervening developments, was disposed of along with several other analogous cases in the following terms: "All the civil appeals stand dismissed as having become infructuous and all the transferred cases are disposed of in the terms of the signed order.

Till further order is passed by the High

5/5 Court, the interim order will continue."

Undisputedly, the substratum of the present impugned action stands taken away, in view of subsequent notification issued by the State.

As such, we dispose of the present petition making the decision rendered in Bihar Sugar Mills Association (supra) binding the parties, reserving liberty to the State to initiate action in terms of the subsequent legislation. Interlocutory application, if any, shall also stand disposed of.

(Sanjay Karol, CJ) ( S. Kumar, J) sujit/- AFR/NAFR CAV DATE Uploading Date 15.07.2020 Transmission Date