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2013 DIGILAW 629 (AP)

M. Adinarayana v. Commercial Tax Officer

2013-08-02

CHALLA KODANDA RAM, G.ROHINI

body2013
JUDGMENT : ChallaKodanda Ram, J. The petitioner is a proprietary concern and is in the business of excavation and sale of Lime Stone and a registered dealer under the provisions of A.P. VAT Act, 2005 (for short, “the Act”) on the file of the 1st respondent. The present writ petition has been filed aggrieved by the assessment order dated 24.03.2011 and penalty order dated 26.09.2011 for the period 2006-2007 to 2010-2011. 2. As per the averments in the affidavit filed in support of the writ petition, the petitioner had duly filed returns for the years 2006-2007 to 2010-2011 and disclosed the turnovers apart from paying the taxes as applicable. The petitioner had received notice dated 24.2.2010 in Form No.30 intimating that there would be an advisory/audit held on 10.03.2010 and directed him to produce the relevant records. Petitioner requested the respondents to grant 30 days time to produce the relevant records on account of absence of his Accountant. Thereafter, there was no communication from the respondents to the petitioner. While so, the 2nd respondent had called the petitioner to their office and directed him to remit an amount of Rs.9,50,003/- alleged to be arrears of tax for the period 2006-2011 in pursuance of the audit. Petitioner caused enquiries and filed objections through his letter dated 30.1.2013 intimating the 2nd respondent about the dispatch of notices to wrong addresses and further requested to furnish a copy of show cause notice. Petitioner did not receive any response to the said letter, but received a notice in Form No.IV on 31.1.2013 whereunder proceedings under Section 25 of the Act were initiated against the petitioner. Petitioner once again addressed another letter dated 31.1.2013 bringing to the notice of the 2nd respondent about non receipt of notice/assessment/penalty proceeding with a further request to conduct assessment proceedings afresh basing on the books of accounts maintained by him. There was no response and the petitioner was constrained to approach this Court by filing W.P.No.3558 of 2013 and in response to the notice ordered by this Court, a counter-affidavit was filed enclosing show-cause notice, copy of the assessment order, copy of the penalty order in Form No.203 and also the proceedings demanding penal interest in Form No.205. There was no response and the petitioner was constrained to approach this Court by filing W.P.No.3558 of 2013 and in response to the notice ordered by this Court, a counter-affidavit was filed enclosing show-cause notice, copy of the assessment order, copy of the penalty order in Form No.203 and also the proceedings demanding penal interest in Form No.205. On verification of the counter-affidavit especially the documents enclosed to the counter-affidavit, petitioner came to be aware of the assessment order dated 24.3.2011 and by seeking leave of the Court, the W.P.No.3558 of 2013 was withdrawn with a liberty to approach the Court afresh. Hence, the present writ petition. 3. The grievance of the petitioner in the writ petition is to the effect that at no point of time, he had received notices with respect to the assessment proceedings as revealed from the documents filed by the 2nd respondent in the earlier writ petition. The following list mentioned documents would reveal about the service or non services of the notice on the petitioner: Sl.No. Notice/order Address written 1 Show cause notice in MallelaAdinarayana, Quary Owner, Form VAT 3054, dated Opp. Swathi Wines, Besides Kerala 20.11.2010 Hotel, Piduguralla Post & Mandal. 2 Assessment order in Mallela Adinarayana, Quarry Owner Form VAT 305, dated Opp. Swathi Wines, Besides Police 24.3.2011 Station, Piduguralla Post, Guntur District 3 Penalty notice in Form MallelaAdinarayana, (Lime Stone 203A, dated 2.8.2011 dealer), Chuttuguntta, 7th Ward Piduguralla P.O, MD, Guntur District.After striking off the above address, it was written as follows: Opp. Swathi Wines, Besides Kerala Hotel 4 Penalty order in Form No postal cover was filed by the 203, dated 26.9.2011 Department along with counter-affidavit. 5. Penal interest order in MallelaAdinarayana, Chuttuguntta, Form 205, dated Opp. Bismilla Biryani Point, 21.11.2011 Poduguralla, Guntur District.After rounding off the “Chuttugunta”, written as “Suddaguntla Bazar” Supporting documents to show that notices were dispatched to the above addresses and postal endorsements on the covers as ‘either claimed’ or ‘unclaimed’ were filed. Learned counsel for the petitioner would also urge that the proceedings are barred by limitation. 4. Sri P.Balaji Verma, learned Special Government Pleader appearing for the respondents fairly concedes the mix up, but however tried to support the impugned order stating that the petitioner being a quarry owner, it is normal practice to serve the notices etc., at the quarry address. 4. Sri P.Balaji Verma, learned Special Government Pleader appearing for the respondents fairly concedes the mix up, but however tried to support the impugned order stating that the petitioner being a quarry owner, it is normal practice to serve the notices etc., at the quarry address. We are unable to accept the said explanation in view of the fact that under Rule 64 of the Act, the mode of service of orders and notices is prescribed. Rule 64 reads as under:- “64. Mode of Service of orders and notices: 1) Unless otherwise provided in the Act, or these Rules, a notice or other document required or authorized under the Act or these Rules to be served shall be considered as sufficiently served, a) on a person being an individual other than in a representative capacity if- i) it is personally served on that person; or ii) it is left at the person’s usual or last known place of residence or office or business in the State; or iii) it is sent by registered post to such place of residence, office or business, or to the person’s usual or last known address in the State; or b) on any other person if- i) it is personally served on the nominated person; or ii) it is left at the registered office of the person or the person’s address for service of notices under the Act; or iii) it is left at or sent by registered post to any office or place of business of that person in the State; iv) where it is returned un-served, if it is put on board in the office of the local chamber of commerce or traders association. 2) The certificate of service signed by the person serving the notice shall be evidence of the facts stated therein.” 5. Inasmuch as admittedly the service of notice is not being in conformity with the prescribed procedure, we are of the opinion that the impugned assessment order is unsustainable being violative of the procedure prescribed for making assessment after service of notice and giving opportunity of hearing. Further, the penalty and interest are being consequences of the assessment order, the same also are liable to be set aside. Further, the penalty and interest are being consequences of the assessment order, the same also are liable to be set aside. Considering the facts of the case, we direct the petitioner to submit his objections treating the show cause notice dated 20.11.2010 as a show cause notice and file his objections on or before 31.8.2013 and thereafter the respondents shall carry on the assessment proceedings in accordance with law. The petitioner is also at liberty to urge the aspect of limitation also in the said proceedings. 6. The Writ Petition is accordingly allowed. No order as to costs. Miscellaneous Petitions, if any pending in this writ petition shall stand closed.