High Court Jharkhand High Court

Electrosteel Steels Limited vs State Of Jharkhand & Ors on 22 September, 2011

Jharkhand High Court
Electrosteel Steels Limited vs State Of Jharkhand & Ors on 22 September, 2011
                      IN THE HIGH COURT OF JHARKHAND, RANCHI
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                              W.P (T) No. 5315             OF 2011
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                                                       -------
CORAM                             HON'BLE THE CHIEF JUSTICE
                                  HON'BLE MR.JUSTICE P.P.BHATT


For the Appellant/Petitioner                    Mr.Sumeet Gadodia
                                                Mr.B.Podder, Sr.Advocate
                                                Mr.Indrajit Sinha
                                                Mr.Piyush Podder

For the Respondents                      M/s.A.K.Sinha,A.G,.Rajiv Ranjan,AAG
                                               Ajit Kumar, AAG
                                               V.Kumar, S.Rani, Jcs to AAG
                                               ---------
  Order No.07                                 Dated 22nd,September, 2011

                 Heard counsel for the parties.

The petitioners have challenged the provision of Section 3 of

the Jharkhand Entry Tax Act on Consumption or Use of Goods Act, 2011 on

the ground that a Division Bench of this Court in the case of Tata Steel

Limited Vs. State of Jharkhand & Ors. reported in [2008] 17 VST 209

(Jharkh) has declared exactly the identical provision made by Section 11 of

the Jharkhand Value Added Tax Act, 2005 as ultra vires to the Constitution

after holding that prior sanction of the President as required under the

proviso to Article 304(b) of the Constitution of India has not been obtained

and after observing that maintaining of roads and providing bridges is not

compensatory in nature so as to constitute special advantage to trade,

commerce and intercourse and after detailed discussion on the issue, the

Division Bench has quashed the said provision.

Against the aforesaid judgment of the Division Bench of this

Court, a SLP has been preferred by the State, but operation of the aforesaid

judgment has not been stayed. Now the State has enacted Act of 2011,

which is nothing but verbatim rewriting of earlier law, which has been

quashed. Therefore, the respondent State be restrained from recovering

any tax from the writ petitioners under the Act of 2011.

Learned A.A.G vehemently submitted that in earlier round of

litigation, it is true that the said provision of law has been struck down but

SLP is pending. It is also submitted that the matter is, thus, sub-judice and

cannot be said to have attained finality. It is further submitted that in

earlier litigation, since the State failed to produce sufficient evidence to

justify levy of the tax by showing that the amount collected is, in fact,

utilized for the purpose for which it was collected, whereas presently the

State has created funds.

Learned counsel for the petitioners submitted that similar

provision for creation of fund was also in the earlier provision of law.

However, the aforesaid matter requires consideration and once
the similar provision has since been struck down by a Division Bench of this

Court and the matter is pending before the Hon’ble Supreme Court and the

State has come up with a new Act during the pendency of this litigation

before Supreme Court and prima facie, the new provision appears to be

same with admitted fact that this time also assent has not been obtained

under Article 304(b) and further looking to the reasons given in the earlier

orders, we are of the considered opinion that the respondent State be

restrained from recovering any amount of tax from the writ petitioners

under the Act of 2011. However, the writ petitioners shall furnish security

for the amount to the State from time to time for payment of tax and

interest, in case they fail to succeed in these petitions. The security be

submitted within a period of three weeks from today.

List these cases for final hearing on 16th November, 2011, as

the counsel for the petitioners have, for valid reasons, difficulty before that

day in arguing the matters, at their request, put up these cases on 12th

December, 2011.

(Prakash Tatia.,C.J.)

(P.P.Bhatt, J.)
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