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2003 DIGILAW 1139 (AP)

SRI VENUGOPAL OIL MILL v. COMMERCIAL TAX OFFICER.

2003-09-05

DALAVA SUBRAHMANYAM, MOTILAL B.NAIK

body2003
ORDER DR. MOTILAL B. NAIK, J. Petitioner is a registered dealer on the rolls of the respondent and doing business in vegetable oil. The petitioner filed an audit report as provided under rule 17(5A) of the A.P. General Sales Tax Rules 1957, which was inserted by G.O. Ms. No. 816, dated November 15, 2000. In the audit report the petitioner claimed exemption in respect of purchase of groundnut seeds effected from oil millers on a turnover of Rs. 19,27,150 on the ground that they have already suffered tax at an earlier stage. While so, the Government of Andhra Pradesh issued G.O. Ms. No. 354, dated May 29, 2001 to the effect that a party, whose turnover exceeds Rs. 40 lakhs, is entitled to file an audit report and on the basis of such audit report the assessing authority is entitled to pass a formal order within a period of fifteen days from the date of receipt of such audit report accepting the claim made by the assessee. However, it is contended that the assessing authority though passed a formal order on February 28, 2003, but such an order has been passed with certain modifications. According to the learned counsel for the petitioner as provided under G.O. Ms. No. 354, dated May 29, 2001 the assessing authority is entitled to pass a formal order accepting the statement made by the assessee, but in case of deviation, the assessing authority is bound to issue a notice to the assessee on the basis of the objections or clarification, if any, and then only the assessing authority is entitled to make appropriate assessment order. Learned counsel stated that the assessing authority without following the procedure contemplated under G.O. Ms. No. 354, dated May 29, 2001 has passed the order impugned, with the result the petitioner is under obligation to pay an amount of Rs. 77,086 towards tax under A.P. General Sales Tax Act, 1957 which according to the learned counsel is incorrect and therefore, seeks appropriate direction. No. 354, dated May 29, 2001 has passed the order impugned, with the result the petitioner is under obligation to pay an amount of Rs. 77,086 towards tax under A.P. General Sales Tax Act, 1957 which according to the learned counsel is incorrect and therefore, seeks appropriate direction. On the contrary the learned Special Government Pleader for Taxes for the respondent submitted that under the scheme of the Act when any order is passed, as provided under section 19 of the Act, the petitioner has a remedy by way of any appeal before the appropriate authority and having not exhausted that remedy the petitioner could not approach this Court under article 226 of the Constitution of India. It is also urged by the learned Special Government Pleader for Taxes that though the order impugned has been passed way back in the month of February, 2002, the present writ petition is filed belatedly in the month of September, 2003 and on that ground alone the writ petition is liable to be dismissed. Having heard both the learned counsel and in the facts and circumstances of the case, we do agree with the submission made by the learned Special Government Pleader for Taxes on behalf of the respondent. However, even if we direct the petitioner to approach the appellate authority, for all the reasons the petitioner would again approach this Court invoking the jurisdiction of this Court under article 226 of the Constitution of India. Apart from this reason, we have also noticed that as provided under G.O. Ms. No. 354, dated May 29, 2001 the assessing authority is entitled to pass a formal order accepting the statement made by the assessee. In other words, if the assessing authority disputes the statement made by the assessee, the assessee is entitled to a formal notice so that he could explain his case. In this case it is noticed that the order impugned has been passed on February 28, 2002 by the assessing authority though styling it as a formal order, but on a scrutiny of the order it does not appear to be a formal order as the assessing authority has not accepted in toto the statement made by the petitioner. That being so, in our considered view, the assessing authority should have issued a notice enabling the assessee to place appropriate material before him. That being so, in our considered view, the assessing authority should have issued a notice enabling the assessee to place appropriate material before him. Having discussed the issue as indicated above, we are of the view, this is a fit case for interference by this Court under article 226 of the Constitution of India. Accordingly, we set aside the order impugned and remit the matter to the assessing authority for passing appropriate orders. We also permit the petitioner to file objections, if any, as the impugned order could be treated as sufficient notice and thereafter the assessing authority is entitled to decide the issue according to law as expeditiously as possible after filing of such objections by the petitioner. However, the petitioner shall deposit an amount of Rs. 40,000 with the appropriate authority within a period of three weeks from today. This deposit would however be subject to the outcome of the enquiry that would be completed by the assessing authority. The writ petition is accordingly disposed of in the above terms. No order as to costs. Petition disposed of accordingly.