IN THE HIGH COURT OF JUDICATURE AT PATNA M.J.C. NO. 2372 OF 2009 ***** SIEMENS LTD., a company registered under the Companies Act, 1956 having its corporate and registered office at 130, Pandurang Budhkar Marg, Worli, Mumbai – 400018 and business address as Plot 6A, Sector 18, Huda, Gurgaon – 122015 and also local address as D Ram Plaza, Exhibition Road, in the town and District of Patna through its Attorney Sri Sudipto Gupta son of Sri Sunil Kumar Gupta resident of P.O. and P.S. Thakurplukur in the town of Kolkata, West Bengal. …. …. Petitioner Versus 1. The State of Bihar through its Chief Secretary, 2. Department of Finance through the Finance Secretary, 3. Department of Commercial Taxes, Govt. of Bihar through the Commissioner of Commercial Taxes, Bihar, Patna, 4. Commercial Tax Officer, Special Circle, Patna (A.O.) 5. Deputy Commissioner of Commercial Taxes Special Circle, Patna …. …. Opposite Parties. ----------- For the Appellant : Mr. Jaideep Gupta, Senior Advocate Mr. Aashish Gupta, Advocate For the Defendants : Mr. Lalit Kishore, AAG-III ------------ PRESENT - THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (21.05.2010) As per Dipak Misra, C.J. – This is an application for initiation of a proceeding of contempt against the opposite parties as there has been wilful violation and disobedience of the order dated 15.4.2009 passed in C.W.J.C. No. 4330 of 2009. It is averred in the petition that the writ petition was filed seeking refund of Rs.5,01,86,576/-, which has been recovered by the 5th respondent - 2 - in complete contravention of the provisions of the Bihar Value Added Tax Act, 2005 (for short „the Act‟) and the Rules framed thereunder. The writ Court, by order dated 15.4.2009, after noting the facts and the contentions, expressed the view in the following terms: - “Considering the submissions of the learned counsel for the petitioner and the State, we are of the view that the taxing authorities / collecting officers collected the amount hurriedly without giving a breathing time to the petitioner inasmuch as when an appeal was pending, the petitioner ought to have been given a breathing time but the fact is that by now the demand amount has been collected by the taxing authorities. In the above circumstances, the only order which can be passed is to direct the appellate authority to dispose of the matter positively on the next date of hearing, i.e. 28.04.2009 itself. This order is being passed in presence of the State Counsel. The State counsel should see that the concerned files are sent to the appellate authority before 28.04.2009 so that the appeal can be heard and orders may be passed on the next date, i.e. 28.04.2009 itself. It is made clear that if case is adjourned by the appellate authority without a request from the appellant, the amount so collected should be refunded immediately to the petitioner as the way in which amount was collected from the petitioner. Whether any amount is payable depends on the ultimate outcome of the appeal. If the appeal is allowed, the amount recovered from the petitioner, shall be refunded to the petitioner in the same - 3 - spate, and in any event within one month from the date of disposal of the such appeal.” 2. After the said order came to be passed, the appeal of the assessee-petitioner was taken-up for hearing on 28.4.2009 by the Joint Commissioner (Appeals), Central Zone, Patna. The appellate authority decided the appeal and set aside the order of assessment which was passed on 18.11.2008. The relevant portion of the appellate order, which is in Hindi, on being translated into English, reads as follows: “Accordingly, in the light of the judgment of the Hon‟ble Supreme Court, the order passed by the lower court is set aside and it is directed to pass order in accordance with law after proper investigation of evidences under the Act (Bihar Sales Tax Act/Central Sales Tax Act).” 3. It is contended in the petition that after the order of assessment was set aside, it was obligatory on the part of the opposite parties to refund the amount that was collected from the petitioner in view of the order passed in the writ petition and that the same having not been done, it tantamounts to contempt of this Court. 4. A show cause has been filed by the opposite parties stating, inter alia, that after the order of remand, the respondent no.4 initiated a proceeding for assessment of the tax due and the date of hearing was fixed on 22.8.2009. At that juncture, the petitioner preferred an application for refund in Form-A-VIII under Section 68 of the Act before the Joint - 4 - Commissioner of Commercial Taxes (Admn.), Central Division, Patna. After the said application was forwarded to the 5th respondent, he recorded an order on 30th July, 2009 to the effect that the appeal has not been allowed and rather a fresh order has to be passed in the light of examination of evidence as directed by the appellate authority and thereafter, the refund application will be considered. 5. As set forth, the order passed on 28.4.2009 does not put the controversy to rest and in fact, it conveys that when an amount will become refundable pursuant to the final determination, the tax collected shall be promptly refunded. It is urged that when the refund application was preferred on 24.7.2009 and while the final demand was yet to be ascertained, it cannot be said that the respondents have committed contempt of Court. A stand has been taken that the appeal has not been allowed in entirety determining the liability and, therefore, the refund cannot accrue at this stage. 6. A rejoinder has been filed by the petitioner to the show cause pleading, inter alia, that the respondents have deliberately rendered an incorrect interpretation to the order dated 28.4.2009 of the appellate authority and have taken an erroneous stand that the appeal has not been allowed by the appellate authority. It has been put forth that when the order of assessment was set aside and a direction has been given to conduct a proper investigation of evidence under the Act, it can be stated with solitude that the appeal was allowed and the assessment order has - 5 - become extinct. It is alleged that the respondents have deliberately endeavoured to misconstrue the order passed by the Division Bench and the said conduct would reveal scant respect for the orders of this Court. 7. We have heard Mr. Jaideep Gupta, learned senior counsel along with Mr. Aashish Gupta, learned counsel for the petitioner and Mr. Lalit Kishore, learned Additional Advocate General-III for the State. 8. The core question that arises for consideration, when this Court had stated, whether any amount is payable, depends on the ultimate outcome of the appeal and the appeal is allowed by way of remand, the amount has to be refunded straightway and the same being not the act, would amount to contempt. 9. Mr. Gupta, learned senior counsel has commended us to the decisions rendered in Jagdish Ram v. Tirath Ram, AIR 1983 P&H 426, Rajalakshmi and Ors. v. Minor Venkatesan and Ors., (1988) 1 MLJ 196, Sow Dammal alias Sundarmmal v. Veerammal and Ors., (1970) 1 MLJ 205, Santhakumari v. Gurumurthy and Ors, (1976) 2 MLJ 432, Pattammal and Ors. v. Yasotha Ammal and Ors., (1980) 1 MLJ 447, Walaiti Ram and another v. Thakur Singh and others, AIR 1973 P&H 349, M.R.M. Pariannan Chettiar (deceased) represented by legal representatives, S.L.N.Sathappa Chettiar and another v. Commissioner of Income Tax, AIR 1960 Mad. 406, Kota Suryanarayana and another v. Penumatcha Lakshmipathi Raju and others, AIR 2002 AP 340, Super Cassettes Industries Ltd. v. - 6 - Commissioner of Customs, New Delhi, 2008 (155) ECR 0063 (SC), State of Madhya Pradesh v. Bharat, (2009) 2 SCC 666, Lankeshwar Malakar and others v. R. Deka and others, (2006) 13 SCC 570, National Agricultural Co-operation Marketing Federation of India Ltd. v. State of Haryana and others, (2009) 24 VST 403 (P&H), Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and others, (2003) 6 SCC 659, State of Gujarat v. Salimbhai Abdulgaffar Shaikh and others, (2003) 8 SCC 50, Kalyan Kumar Basak v. Salil Kumar Basak and others, AIR 1986 Cal 298, Dr. K.R.K. Talwar v. Union of India and another, AIR 1977 Del 189 and TATA Refractories Ltd. and another v. Sales Tax Officer and others, (2003) 1 SCC 65. 10. The learned senior counsel has invited our attention to many passages from the said decisions. One such passage is from Super Cassettes Industries Ltd. (supra) in which he has referred to paragraph 4 wherein it has been held as under: - “4. The Commissioner (Appeals) allowed the appeal by way of remand with the directions "I remand the matter to the assessing authority and direct him to pass an appealable speaking order in the matter after extending proper opportunity to the appellants to defend themselves". Thereafter, the Deputy Commissioner passed an order saying that CVD is leviable on the imported goods without making any distinction between new and repaired magnetic heads. The appeal filed against the order passed after remand by the Deputy Commissioner was dismissed by the Commissioner of Customs (Appeals).” - 7 - 11. The learned senior counsel has also drawn inspiration from the observations made in TATA Refractories Ltd. and another (supra) wherein in paragraph 7, it has been held as follows: - “7. It is to be noted that the order of the High Court in earlier writ petition namely OJC No.1200 of 1995 was made by the High Court in the exercise of its power under Articles 226 and 227 of the Constitution of India wherein while directing the appellants to deposit the amount quantified therein, the High Court also issued a direction to the respondent State that it should refund the amount with interest at the rate of 18% per annum in the event of the appellants succeeding in the second appeal. This order is definitely not one made under the provisions of the Act. The respondent State which took benefit of the said order and retained the amount deposited by the appellant, cannot now be permitted to say when it comes to refund direction issued by the High Court in its order dated 15.3.1995 will not be binding on it and it is only the provisions of the statute that will bind. As noted above, it is not by invoking the provisions of the Act, the deposit was directed to be made by the High Court, hence, any direction made while making an order under Articles 226 and 227, to deposit any sum of money will be governed by the conditions imposed in the order directing such deposit. On the contrary if any such condition as to the interest had not been made by the High Court while directing the deposit of the amount then it could be said that the refund which may become payable will be governed by the provisions of the State Act. In the instant case, since the very order which directed the deposit itself has directed the refund with 18% interest, we have no doubt in holding the said order as to mean that the refund should be made with interest at the rate of 18% from the date on which the amount was deposited pursuant to the order of the High Court dated 15.3.1995.” 12. Mr. Gupta, learned senior counsel has also commended us to M.R.M. Pariannan Chettiar (deceased) represented by legal - 8 - representatives, S.L.N.Sathappa Chettiar and another (supra) and pressed into service paragraph 13 which is as follows: - “13. There is yet another objection to the order of the Tribunal. The Appellate Tribunal, after setting aside the assessment, and directing a fresh assessment, has concluded its order with the words “The appeal is dismissed.” It is difficult to follow how the appeal could be held to be dismissed, while, in substance, it was allowed, by setting aside the assessment. In the statement of the case, the Tribunal sought to explain the inconsistency between its order of remand and ultimate dismissal of the appeal thus: “It is hereby submitted and with respect that this narration is only a direction for purposes of the tribunal‟s own statistics and which cannot by any means affect the rights or liabilities of the parties before the Tribunal which are only governed by the directions in the body of the order.” We fail to understand as to how any statistics maintained by the Tribunal could require that an appeal, which was virtually allowed, should be treated as one dismissed. We have come across cases in execution proceedings governed by the Civil Procedure Code, where it has been held that the use of words “dismissed” “struck off,” “recorded” etc., do not, by themselves, indicate a termination of the proceedings, so far as that court is concerned, and that those words should be understood in the light of the context to see whether there has been a final disposal of the execution petition. We cannot see - 9 - how that principle can apply to appeals before the Tribunal. For one thing, a remand implies a termination of the proceedings, so far as the appellate authority is concerned, and no question would arise about continuation of the appeal thereafter. For another, the term “dismissed” has a definite legal connotation implying a final disposal by the Tribunal, rejecting the case of the suitor.” 13. Basically relying on the said decisions, it is submitted by Mr. Gupta, learned senior counsel, that when the appeal has been allowed refund is an inevitable sequittur. Per contra, Mr. Lalit Kishore, learned Additional Advocate General-III, would submit that the language used by the Division Bench has a different connotation, for it says, „whether any amount is payable depends on the ultimate outcome of the appeal‟. In that context, the Bench has used the words thereafter, „if the appeal is allowed‟. 14. On a careful scrutiny of the decisions and the order of the Division Bench, we are of the considered opinion that the prayer for grant of refund would depend upon the payability. It relates to the determination of the tax liability. The tax so far has not been finally determined. The matter has been remanded and the same is under consideration. The order might have been set aside but it has not been held that the tax is not payable. That apart, in a proceeding for contempt, by dwelling upon and delving into such subtle facets and fine aspects to say that the opposite - 10 - parties have really committed contempt of this Court would not be really within the contempt jurisdiction. 15. In the result, we are not inclined to initiate a proceeding for contempt and, accordingly, the proceeding is dropped. (Dipak Misra, C.J.) (Mihir Kumar Jha, J.) Patna High Court Dated, the 21th May, 2010. N.A.F.R Pawan/-