IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5615 of 2010 M/S HINDUSTAN CONSTRUCTION CO. LTD., A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1913 HAVING ITS REGISTERED OFFICE AT HINCON HOUSE, LAL BAHADUR SASHTRI MARG, VIKHROLI (WEST), MUMBAI-400083, THROUGH ITS AUTHORIZED MANAGER, KAMAL BANWARILAL PUROHIT, S/O SHRI BANWARI LAL PUROHIT, R/O AT- B-3/15, EMCECE CO- OPERATIVE HOUSING SOCIETY, SUNDAR NAGAR, S.V.ROAD, P.S.- MALAD (WEST), MUMBAI- 400 064 … Petitioner Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY-CUM-COMMISSIONER OF COMMERCIAL TAXES, BIHAR, VIKASH BHAWAN, BAILEY ROAD, PATNA 2. THE JOINT COMMISSIONER OF COMMERCIAL TAXES (ADMN.), BHAGALPUR DIVISION, BHAGALPUR 3. THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, CIRCLE IN-CHARGE, MUNGER CIRCLE, MUNGER 4. THE COMMERCIAL TAXES OFFICER, MUNGER CIRCLE, MUNGER 5. THE GENERAL MANAGER, EAST CENTRAL RAILWAY, HAJIPUR (VAISHALI) 6. THE CHIEF FINANCE & ACCOUNTS OFFICER (CONSTRUCTION), EAST CENTRAL RAILWAY, MAHENDRU GHAT, PATNA … Respondents. ----------- 5. 18.5.2010 This Court on 7.4.2010 had passed the following order: “ Heard Mr. S.D.Sanjay, learned counsel for the petitioner and Mr. Lalit Kishore, learned Addl. Advocate General No.III for the State. This Court on 09.09.2009 had passed the 2 following order:- “Heard the parties. All the claims of the petitioner except a claim for Rs.14,397/- has been settled by the respondents by allowing the refund along with permissible interest. According to respondents the deposit of aforesaid amount in the concerned treasury could not be verified as yet and, therefore, that claim has been kept pending. On behalf of the petitioner a supplementary affidavit has been filed annexing certain documents therewith as annexure- 8 series. They include certificate granted by the authorities of North Eastern Railway, Samastipur of the year 1997 as well as of the year 2002 which prima facie support the case of the petitioner that the aforesaid amount of refund of Rs.14397/- was also deducted at the source and the railways have also certified that they deposited the same through a cheque dated 20-9-1996. Unfortunately, the railways due to passage of time or some other reason have not furnished the challan number and date through which the aforesaid amount was deposited through the cheque dated 20-9-96, which was in fact for a bigger amount of Rs.17,200/-, which they certify includes 3 Rs.14,397/- deducted from the petitioner. Learned counsel for the respondents prays for some time to verify the genuineness of all the certificates issued by the railways and also with a view to reassure themselves that the cheque dated 20-9-96 has been received in the treasury. In the facts of the case we grant four weeks time to the respondents to make necessary verification and it is expected that in case the certificate of the railway is found to be correct then the aforesaid amount shall also be refunded to the petitioner with permissible interest.” It is submitted by Mr. Lalit Kishore, learned Additional Advocate General-III for the State that despite arduous efforts neither the challan nor the cheque in respect of Rs.14397/- is traceable. Mr. S.D.Sanjay, learned counsel appearing for the writ petitioner submitted that the Railways have given a certificate in his favour that the amount was deducted at source from the bills. In view of the aforesaid controversy, we are inclined to direct the Commissioner of Commercial Taxes, Bihar, Patna to cause an enquiry whether actually the Railways have deducted the amount at source and deposited 4 in the treasury. The writ petitioner shall appear in person or through his representative before the Commissioner of Commercial Taxes, Bihar on 19th of April, 2010. The Commissioner of Commercial Taxes, Bihar, Patna, shall issue notice to the Divisional Railway Manager, East Central Railways, Samastipur, who shall appear on a date fixed and try to get the controversy put to rest. If it is eventually found the amount was deducted at source and deposited, the petitioner shall be refunded the amount with the statutory interest. Needless to say the Divisional Railway Manager, East Central Railway, Samastipur, shall fully cooperate keeping in view the order passed by this court. Be it noted, Assessing Officer has reviewed its own order and expressed the view that the certificate, that has been produced from the Railway Administration, is not in accordance with Rules. The said decision can be clarified when the competent authorities from the Railways appear before the Commissioner. The writ petition is disposed of accordingly. There shall be no order as to costs. A free copy of the order be handed over to Mr. Lalit Kishore, learned Additional Advocate General- III for the State for 5 communication of the same to the Commissioner of Commercial Taxes, Bihar, Patna as well as to the Divisional Railway Manager, East Central Railway, Samastipur.” Thereafter on 12.5.2010 the following order came to be passed in pursuance of the aforesaid order. “ Be it noted, this writ petition was disposed of on 7.4.2010. Thereafter, M.J.C.No. 1767 of 2010 was filed and on consent of learned counsel for the parties, the said order was recalled. Hence, the matter is taken afresh. It is submitted by Mr. S.D.Sanjay, learned counsel for the petitioner that Commercial Taxes Authorities are already determined that the petitioner is entitled to refund of a certain sum, but eventually in stead of refunding the said amount, on technical ground recalled the said order and imposed a demand. Per contra, it is urged by Mr. Satyabir Bharti, learned counsel for the State that the petitioner was working as a contractor with the East Central Railway and the Railways had deducted the amount at source, but they did not really deposit the amount in the name of the assessee- petitioner and, therefore, the question of refund need not arise. It is also 6 urged by him that the amount was also not deposited in the name of the commercial department. Mr. Binod Jee Verma, learned counsel appearing for the East-Central Railway submitted that the amount, that has been deducted at source, has been deposited in the Treasury. The said position is controverted by Mr. Satyabir Bharti stating, inter alia, that the deposit has been made in the Treasury, but in the name of East Central Railway and, therefore, the refund by the Commercial Department to the assessee- petitioner does not ensue. To get a clear picture, we would like the Chief Finance & Accounts Officer (Construction), East Central Railway, Mahendru Ghat, Patna to remain personally present before this Court on 14.5.2010 at 10.15 a.m. failing which appropriate action shall be taken against him by this Court. A free copy of the order be handed over to Mr. Binod Jee Verma, learned counsel appearing for the Railways to intimate the said authority about the order passed today.” On 14.5.2010 Mr. Tanvir Ahmad, the Chief 7 Financial Advisor-cum-Chief Accounts Officer (Construction), East Central Railway appeared and brought the files. It was submitted by him that the amount was deducted at source from the bills which were issued by way of two cheques in the name of the competent authority of the Commercial Taxes along with the list showing what amount has been deducted from the contractor. In view of such statement made this Court directed the Principal Secretary-cum-Commissioner of Commercial Taxes to remain personally present today. Pursuant to the aforesaid order Mr. Subhakirti Majumdar, Principal Secretary-cum- Commissioner of Commercial Taxes and Mr. Tanvir Ahmad, the Chief Financial Advisor-cum-Chief Accounts Officer (Construction) appear in person. Initially there was quite cavil between the Railways and the Commercial Tax Department. On one hand Mr. Tanvir Ahmad submitted that the amount had been deducted and deposited with the Commercial Tax authority which would clearly show from whom the tax was deducted. The Commissioner of Commercial Taxes 8 refuted the same with all vehemence at his command. This Court requested the learned counsel for the parties to have the discussions with respective parties to arrive at the truth as we perceive a mage was created with regard to simple accounting system. Eventually learned counsel after discussing with the respective parties very fairly stated that the amount had been deposited in the Patliputra Circle of Commercial Taxes but no heading and „name of the contactor‟ were not mentioned. It is difficult to say, at the moment whether the tax that was deducted at source by the Railways and deposited with Patliputra Circle of Commercial Taxes which would show that the tax was deducted from the writ petitioner. In view of aforesaid, it is directed that Mr. Tanvir Ahmad, the Chief Financial Advisor-cum- Chief Accounts Officer (Construction), East Central Railway shall go to the office of Mr. Majumdar, Principal Secretary-cum-Commissioner of Commercial Taxes on 24th of May, 2010 at 11 A.M. The petitioner is at liberty to depute a representative of his own. In the said meeting reconciliation shall be done with regard to accounting. The said exercise shall be completed within a week 9 hence. After the reconciliation takes place the amount that had been deducted from the petitioner shall be refunded within 30 days therefrom. This Court hopes and trusts, all shall work in harmony so that this kind of problem would not come time and again before this Court. Needless to say, when the amount is refunded the statutory interest as stipulated in law shall follow. The writ petition is allowed to the extent indicated above. There shall be no order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Surendra/