SRI SARADHI ENTERPRISES v. APPELLATE DEPUTY COMMISSIONER OF COMMERCIAL TAXES, VIJAYAWADA, AND ANOTHER.
2006-08-01
G.BHAVANI PRASAD, J.CHELAMESWAR
body2006
DigiLaw.ai
ORDER J. Chelameswar, J. The petitioner is a proprietary concern and an assessee on the rolls of the second respondent herein, which is a "dealer" in the meaning of the said expression under the Andhra Pradesh General Sales Tax Act, 1957 carrying on business in distribution and sale of soft drinks. For the assessment years 2001-02, the second respondent assessed the petitioner's tax liability, under the abovementioned Act, by his proceedings dated January 18, 2005. The goods are taxable as falling under entry No. 21 of the Sixth Schedule to the Andhra Pradesh General Sales Tax Act, 1957. It is the case of the petitioner that while making the assessment the assessing authority took its gross turnover into consideration for determining the tax liability, whereas according to the petitioner the assessing authority is required to take only that much of the turnover excluding the tax. The petitioner, therefore, made an application before the assessing authority, purporting to be one, under rule 50 of the Andhra Pradesh General Sales Tax Rules, 1957. The said application was rejected by an "endorsement" dated January 31, 2006 of the second respondent. The relevant portion of the said endorsement reads as follows : "The request of the dealers is examined and they are hereby informed that revision of assessment under rule 50 arises only in cases of arithmetical mistakes apparent from record and this is not a case falling under this category because in this case the assessment was finalised duly accepting the turnovers furnished in the statements certified by the chartered accountant. Consequently, the request of the dealers is rejected and they are directed to pay the balance immediately." Aggrieved by the same, the petitioner carried the matter in appeal before the first respondent and the first respondent by his proceedings dated April 24, 2006, held that no appeal under section 19 of the APGST Act, 1957 would lie against the endorsement like the one in question before us. The relevant portion of the same reads as follows : "As per section 19 of the APGST Act there is no provision to file an appeal petition against an endorsement and hence the appeal petition is rejected from admission." Hence, the present writ petition. Heard the learned counsel for the petitioner and the learned Special Government Pleader for Taxes.
The relevant portion of the same reads as follows : "As per section 19 of the APGST Act there is no provision to file an appeal petition against an endorsement and hence the appeal petition is rejected from admission." Hence, the present writ petition. Heard the learned counsel for the petitioner and the learned Special Government Pleader for Taxes. Whether the application made by the petitioner invoking rule 50 of the Rules made under the APGST Act, is maintainable or not depends upon the facts and circumstances of the case and we are not concerned with the maintainability or correctness of the claim made in the said application in the present writ petition. The question before us is whether the rejection of such an application is either an order or proceeding and whether the same is appealable under section 19 of the Act. Section 19 of the Act reads as follows : "19. Appeals. - (1) Any dealer objecting to any order passed or proceeding recorded by any authority under the provisions of the Act other than an order passed or proceeding recorded by an Additional Commissioner or Joint Commissioner, Deputy Commissioner under sub-section (4C) of section 14, may, within thirty days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed :" In substance, section 19 of the Act provides an appeal against any order or proceeding recorded by any authority under the provisions of the Act, except those specifically excluded in the section. The expressions either "order" or "proceeding" are not defined under the Act, but it is settled law that an order is a decision taken by some authority thereby affecting the rights and obligations of the subjects of the State. Viewed from this angle, the decision of the second respondent to reject the application of the petitioner herein, in our view, certainly, would be an order as by the said endorsement the right of the petitioner for the determination of an accurate amount of tax payable by him in accordance with law, is affected, in the sense the second respondent rejected to examine the claim of the petitioner that it was wrongly taxed at a higher amount than what is legally due from it.
The fact that the second respondent chose to describe his decision as an endorsement, in our view, does not make any difference for its appealability. It is the quality and character of the decision that determine the appealability of the order, but not the nomenclature given to it. In substance, the first respondent, in our view, has clearly erred in coming to the conclusion that the appeal filed by the petitioner is not maintainable. For the foregoing discussion, the writ petition is allowed directing the first respondent to consider the appeal of the petitioner on merits. For the foregoing discussion, the writ petition is allowed directing the first respondent to consider the appeal of the petitioner on merits.