DELTA MECHONS THREE SALE TAX CASES AGAINST NEEPCO AND TAXATION AUTHORITIES The three cases were

listed before the Division Bench comprising of Honble Mr A.K.Goel, the Chief Justice of Gauhati High Court and Honble Justice Upadhya on 16.03.2012 as Item No. 8, 9 and 10, sitting in Court No.1. Item 8 was W.P.(C) 4974/2011, Item 9 was W.P.(C) 4977/2011 and Item 10 was W.P.(C) 4975/2011. W.P(C) 4974/11 was the case relating to Period ending 1995-96, W.P.(C) 4977/11 was the case relating to Period Ending 1998-99 and W.P.(C) 4975/11 was the case relating to period ending 1997-98. In this context I wish to inform you that prior to 16.03.12 the cases had been listed before courts comprising of a single bench i.e. the cases had till that date been heard by a Single Judge. The listing before the division bench on 16.03.12 had come about due to the issuance of a Circular issued by the Chief Justice wherein all cases involving Sales Tax matters were directed to be listed before a Division Bench instead of a Single bench At the onset the court enquired from us as to why we were seeking the amendments as had been sought for by us through our Misc Cases. Upon such query when we pointed out that we were seeking for the amendments as because during the course of the proceeding before the single judge some information had been sought for by the single judge from us in view of the inability shown by the Sales Tax Department and the concerned state counsel to produce the records of the cases before the court for quite some time and the repeated requests made on behalf of the Taxation department to seek time for placing the records of the case before the court and that apart we also pointed out to the court that till date NEEPCO had not made their appearance and because of which the some documents which we had not annexed earlier with our writ petition were being placed on record through the said amendments so as to facilitate the court to arrive at a proper understanding of the cases. The court then enquired from us as to whether the report of service upon NEEPCO was on record. Upon such Query we pointed out the note in the court file issued by the Registry of the High court in respect of the same. The said Note showed that service upon the Head of Project, Assam Gas based Plant the proforma Respondent No.5 was completed and the A/D card supports the same, but with regard to the service upon NEEPCO at their Head Office at Shillong the same could not be completed as because inspite of the address being correct and proper the Envelope containing the copies of the petition has been returned back by the Postal department unserved without any endorsement of any sought as to either address incomplete, addressee not found address not available etc. The Court upon scrutiny of the Note of the Registry and the envelope containing the steps opined in open court that it is evident that NEEPCO was purposefully avoiding appearance before the court by manipulating the service of notice and accordingly informed us that the Court will proceed with the matter irrespective of the presence of NEEPCO and thereupon asked us to show them the additional documents which we were planning to file through the amendment petitions. We had thereafter submitted to the Court Original Assessment orders and other records such as the copies of the certificates issued by NEEPCO to us. The Court after going through the same observed that it was clear that NEEPCO was the party at fault in respect of payment of taxes and we cannot be made to suffer for the fault of NEEPCO. Thereafter, the court after going through our main writ petition asked as to why we had not appeared before the revisional authority i.e. the Csommissioner of Taxes. Upon such query we intimated the court that we could not appear as because no notices were served upon us by the revisional authority. We also pointed out that we became aware about the dismissal of our revision only when we had received the Demand from the Recovery. We also pointed out the fact that our company did not have any office here in the State of Assam as we had after completion of our various works had left the state, we also pointed out to the court that in our revision petition in stay petition filed therein we had specifically mentioned our Mumbai Address The court then asked the Counsel of the Taxation department as to whether notice upon us in Mumbai address was done the counsel expressed his inability to answer the same due to absence of record. The court then asked the counsel of the Taxation Department as to whether he had any objection if the cases were disposed off by the court by way of setting aside the

2 revisional order and all other subsequent developments and notices issued by the taxation department. The counsel of the taxation department though raised some objection with regard to the same but the court totally disregarded the said contentions and then asked us as to when it would be possible for our company personals to appear before the revisional authority. We suggested to the court that as all our personals are based at Mumbai at least one month time should be granted to us to prepare ourself and appear before the commissioner of taxes. Thereafter the court passed the orders in respect of the three cases.

So now in view of the same I would suggest that either Mr Bullar or Mr Shetty or both of them should come over to Guwahati to meet us so that we can decide upon our next course of action and as the date is fixed on 19th April I feel that they should come and meet me by the end of this month. NOTE: A scanned copy of one of the orders is also being sent along with this write up

Arnab Biswas Advocate