M/S Oswal Ispat Udyog,Durg v. State Of Chhattisgarh And ORS.

EMw IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (CG) WRIT PETITION No.

84'

/2005 PETITIONER M/s.

Oswal Ispat Udgyog, Proprietorship Firm, through Its Proprietor, Mool Chand Jain, son Late Amarchand Jain, M/s.

Oswal Ispat Udyog, R/o.

240, Malviya Nagar, Durg (Chhattisgarh) /

VERSUS

RESPONDENTS //'l.

¢ State of Chhattisgarh, j} through :

Secretary, Department Vanijyik Kar, Bhawan, "I Dau Kalyan Singh Raipur (Chhattisgarh) "I Commissioner, Department of Vanijyik Kar, Raipur (CG) Additional Commissioner, Department Vanijyik Kar, Raipur (Chhattisgarh) Deputy Commissioner, Department Vanijyik Kar, District Durg (Chhattisgarh) 1i ,/gi Commercial Tax Officer / Additional Tahsildar, Circle I, Durg (Chhattisgarh) //6.

Settlement Officer, Department Commissioner, Under Kar Vivada Yojana, 2000.Raipur.

// WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA, PARTICULARS ABOUT THE PETITIONER As per cause title.

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\(V) NAFR HIGH COURT OF CHHATTISGARH. BILASPUR WP.

NO '

M/s Oswal Ispat Udyog, Durg ---- Petitioner

Versus

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State Of Chhattisgarh & OrAs, ---- Respondent ShrlRaJe VXShrlvastava Advocate For ?etitioner > For Respondents Shn PK Bhadum Govt Advocate Hon'ble Shri Justlce Prashant Kumar Mishra_ Order On Board v1 Hie/2016 's a dealer registered under the Commercial Tax Act, l.

The petitioner 0 and 1990-91, the 1994. For the assessment period 1988-89, 1989-9 petitioner was in default of payment of tax to the department. In order settle pending disputes between assessees eme namely, ent, State.

Government formulated a sch Governm Madhya Pradesh Kar Vivad Samadhan Yojna, (for short 'the Scheme').

The scheme provided that the tax imposed and payable, I penalty interest which relates year 1994-95 or previous / ;

eriods whtch is m arrears wholly or partly as on 15' April 2000 shall / ,/ P he scheme further categorued the / he considered for "Samadhan / A3

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\(SQV Samadhan amount in each category of the cases. After the Samadhan authority would calculate the Samadhan amount on which settlement was to be arrived at, the defaulter was required to deposit the amount ins cash in the Government treasury, failing which Samadhan scheme shall not be available or on compliance thereof, Samadhan certificate shall be issued for the full and final disposal of the amount of the arrears of the dealer and no penal action against the defaulter under any Act shall be initiated.

State Government thereafter framed Madhya Pradesh Kar Vivad Samadhan Yojna Niyam, 2000f'(for short 'the Niyam') prescribing the procedure for moving the; application by the defaulter for availing the benefits of the scheme.

Clause 2(i) of the Niyam defines the Competent Authority to mean the Commercial Tax Officer of the circle to whom the submission of the declaration is expected. Samadhan Authority was defined clause 2(k) mean officer not below rank Assistant Commissioner, Commercial Tax who will be authorised sanction Samadhan amount.

Clause 3 of the Niyam provided that the defaulter shall submit in prescribed form I in duplicate before competent authority during from 15'

October, 2000 .to 315' December, 2000 and the competent authority shall give acknowledgment in writing receipt declaration.

Similarly, clause provided that after receiving declaration competent authority shall send whole record relating t\x"

verification of the amount of arrears to the Samadhan authority who will scrutinise the case and sanction the Samadhan amount. It is the case of the petitioner that application along with declaration to avail scheme was presented before competent authority i,e.

Commercial Tax Officer, Durg, Circle I, Durg in two cases on 27.12.2000 30.12.2000 third before CommercialiTaX Officer, Raipur Circle I,',Raipur on 27.12.2000, therefore, all applications were presented before competent authority within time.

HoWever, the applications have been dismissed by Additional Commissioner, Commercial Tax, Raipur without considering them on merits on the ground that they were not received within time.

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Shri PK Bhaduri, learned Govt. Advocate would submit that under the Scheme read with the Niyam petitioner was required submit application before the competent authority and obtain his signatures which he has failed to do, therefore, the respondents cannot be blamed for non-consideration of his application for the assessment year 198687. He would also_submit that application for the remaining two years i.e. 1987-88 and 1988-89 were considered under the Scheme, therefore, prayer for these two years do not survive for consideration. petitioner has submitted applications Scheme by presenting the same in the office of Commercial Tax Officer, x g $3 t

\WK) Durg or Raipur.

first application was pertaining 1.7.1986 to 30.6.1987; the second application was for the assessment year 1987-88 third application was for assessment year 1988-89.

The first application has not been considered on merits and rejected summarily Vide Annexure-R/l dated 12.4.2001 on the ground that it was received by the Samadhan Authority after the prescribed date.

In respect of the second application for the assessment year 1987-88, statement has been madein the writ petition, in subject matter in brief, that dispute for this year wassettled under the Samadhan Scheme and the'petitioner has cleared the dues.

Thus this application under the Samadhan Scheme has been rendered infructuous and does not survive - for consideration by this Court.

third presented before Commercial Tax Officer, Raipur Circle I for the assessment year 1988-89 was considered by the authority and orders were passed informing the petitioner about Samadhan amount to be deposited by him. As mentioned in paral Additional Return filed on 7.3.2009, which has not been controverted, therefore, the matter is not open for consideration under the Samadhan scheme because the same has already been considered appropriate orders have been passed but the petitioner failed deposit the Samadhan amount nor challenged the said orders, thus the same has rendered final.

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8.

The above leaves this Court to consider as to whether non-consideration Scheme for 1.7.1986 30.6.1987 on the ground that it was presented after the prescribed date" is justified.

9.

After giving anxious consideration and particularly for the reason that on respondents own showing, similar applications rnoved before competent authority for the assessment year 1987-88 and 1988-89 have been considered and orders were passed in petitioner's favour and as a matter of fact, for the year 1987-88, the petitioner was informed about Samadhan amount and he deposited the amount to clear the dues and for th'e year 1988-89, statement has been made in the return that thisapplication was also considered on merits and Samadhan amount was informed to the petitioner but he failed to deposit the amount, there was absolutely no reason for the respondents to have refused to consider the application for the assessment year 1986-87 on merits and rejected the same on the ground that it was not received by Samadhan authority within time.

10.0therwise also, once it is admitted in the return that the application Was submitted before the competent authority within time but was received in the office of Samadhan authority after due date, the petitioner cannot be blamed for the delay occasioned in between the office of competent authority and the Samadhan authority.

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W \ 1.For aforestated reasons, petitioner's Scheme, for assessment 1.7.1986 30.6.1987 deserves to be considered on merits. 12.According1y, the Writ Petition for the application under the Samadhan scheme for the year 1987-88 (Annexure-P/9) is dismissed as infructuous that year 1988-89 (Annexure~P/10) is dismissed as not maintainabie, as the same has already been considered 0n merits and the application for the assessment period 1.7.1986 to 30.6.1987 is remitted back Sain'adh'anAuthority for consideration on merits, in accordance with law.

13.No other points were raised before this Court at the time of hearing. 14.Till petitioner's for the assessment period 1986-87is considered and decided on merits by the concerned authority, recovery of arrears for the said period shall remain in abeyance. , W 2"

Sd/- '77 a Prashant Kumar Mishra - Judge Barve