IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.1963 of 2011 ====================================================== M/s Rukunpura Concrete Udyog, through Shri Deo Narayan Sinha aged about 75 years, S/o Late Hulash Singh, R/o Pasnauli, Maharajganj, Siwan, residing at present at Rukunpura, P.O.-Vetenary College, P.S.-Danapur, District-Patna. .... .... Petitioner Versus 1. The State of Bihar, Patna. 2. The Commissioner of Commercial Taxes, Bihar Patna. 3. The Commercial Tax Officer, Siwan Circle, Siwan. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. L.N.Rastogi with Mr. Sharat Kumar Sharan, Advocates. For the Respondent/s : Mr. Lalit Kishore, AAG-1. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 6. 18-05-2011 This petition under Article 226 of the Constitution is filed by a registered dealer against the order of reassessment dated 10th August 2010 made under Section 19(1) of the Bihar Finance Act, 1981 in respect of the Assessment Year 2004-05. Learned counsel Mr. Rastogi appears for the petitioner. He has submitted that evidently the reassessment proceeding was initiated on the basis of report of the Comptroller and Auditor- General of India. The relevant Rule 24 of the Bihar Value Added Tax Rules, 2005 provides for issuance of notice in Form N-VII. The proforma notice of hearing Form N-VII envisages furnishing of the observations made by the Comptroller and Auditor-General to the dealer. In the submission of Mr. Rastogi in the present case, the aforesaid formality has not been followed; the order of Patna High Court CWJC No.1963 of 2011 (6) dt.18-05-2011 2 reassessment is, therefore, vitiated. He has submitted that the notice issued in Form-XIV under Rule 20 of the Bihar Sales Tax Rules, 1983 was never received by the petitioner. He has strenuously urged that the order of reassessment is incorrect on merits also. The respondents have confused between the figures of the year 2003-04 and the figures of the year 2004-05. The respondents have appeared through the learned Additional Advocate General-1 Mr. Lalit Kishore. Mr. Lalit Kishore has submitted that the matter at issue relates to the Assessment Year 2004-05, i.e. period prior to the enactment of the Bihar Value Added Tax Act, 2005 (hereinafter referred to as ‘the Act of 2005’). He has relied upon the provisions contained in Section 94 of the Act of 2005. He has submitted that as envisaged by Section 94(2) of the Act of 2005 the matter is governed by the Bihar Finance Act, 1981 (hereinafter referred to as ‘the Act of 1981’) and the Bihar Sales Tax Rules, 1983 (hereinafter referred to as ‘the Rules’) made thereunder. He has submitted that Section 19 of the Act of 1981 provides, inter alia, for reassessment in case of any turnover of a registered dealer escaping assessment. Rule 20 of the Rules provides for notice of hearing in Form-XIV. The statutory Form-XIV does not contemplate furnishing of the observations made by the Comptroller and Auditor-General. In the present case, the notice of hearing had been issued on 14th July 2010 in accordance with the provisions contained in Section 19 of the Act of 1981 read with Rule 20 of the Rules in the statutory Form-XIV. Moreover, the gist of the observations made by the Comptroller and Auditor-General was also incorporated in the said notice. He has relied upon the proceedings to submit that the proceedings were initiated under section 33(1) of the Act of 1981 Patna High Court CWJC No.1963 of 2011 (6) dt.18-05-2011 3 as early as on 9th October 2009. Representative of the petitioner did appear before the authority. In the proceeding dated 9th October 2009, he made endorsement of perusal. Since then the said representative did not appear before the authority. He has submitted that the notice dated 14th July 2010 was also not responded to by the petitioner. He has submitted that the requisite procedure under the Act of 1981 and the Rules was followed and the petitioner had been given due opportunity. Against the order of reassessment the petitioner has an alternative statutory remedy of appeal. A petition under Article 226 of the Constitution, therefore, shall not lie. It is indeed true that the matter at issue pertains to the year 2004-05. The proceeding, therefore, shall be governed by the Act of 1981 and the Rules. It is also indisputable that against the impugned order of reassessment the petitioner has an alternative statutory remedy of appeal. This court in exercise of power of judicial review under Article 226 of the constitution will not venture into the legality of the impugned order of reassessment as the petitioner has an alternative statutory remedy for redressal of his grievance. The only question is whether the principles of natural justice were complied with or whether the statutory notice envisaged under Section 19 of the Act of 1981 had been issued. To satisfy us that the notice in question was issued on 14th July 2010, the learned Additional Advocate General-1 Mr. Lalit Kishore has produced the dispatch register of the relevant period. He has submitted that on 14th July 2010, entry no. 640 made in the dispatch register refers to the notices issued to the petitioner for the years 2004-05, 2005-06 and 2006-07. Patna High Court CWJC No.1963 of 2011 (6) dt.18-05-2011 4 There being a prima facie evidence of the issuance of notice under Rule 20 of the Bihar Sales Tax Rules, 1983, we do not propose to examine the order of reassessment on merits. The petition is dismissed. The petitioner may avail of the alternative statutory remedy to challenge the order of reassessment. Sujit/- (R.M.Doshit, CJ) (Jyoti Saran ,J)