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2020 DIGILAW 573 (TS)

Sony Wheels Private Limited v. Commercial Tax Officer Audit

2020-07-22

M.S.RAMACHANDRA RAO, T.AMARNATH GOUD

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JUDGMENT M.S. Ramachandra Rao, J. - Heard counsel for petitioner and Sri M.Govind Reddy, Special Counsel for Commercial Taxes appearing for respondents. 2. In this Writ Petition, petitioner has assailed Section 4(8) of the Telangana VAT Act, 2005 read with Section 2(28) Explanation (iv) as being violative of Articles 14, 19(1)(g) and 245 of the Constitution of India apart from it being ultra-vires to Entry 54 of List II of the VII Schedule of the Constitution of India, and in the alternative, petitioner has also sought a declaration that Section 65(105)(O) of the Finance Act, 1994 as ultra-virus to Entry 54 of List II of the VII Schedule to Article 14 and Articles 19(1)(g) and 245 of the Constitution of India. In addition, petitioner has also challenged Audit Assessment Proceedings dt.13.03.2020 passed by the 1st respondent for the tax period 2013-14 to 2016-17 levying tax under Section 4(8) of the Telangana VAT Act, 2005 without considering the specific contentions of the petitioner and payments made towards service tax by it to the Union of India on the same transactions of it's Cab Operator Services. 3. According to the petitioner, this action of the 1st respondent amounts to double taxation and the said order is required to be quashed, not only on the said ground, but also on the ground that the assessment for the tax period March, 2013 to January, 2014 is barred by limitation. 4. In addition, it is contended by the petitioner that a notice dt.07.11.2019 had been issued by the 1st respondent proposing to assess the petitioner for the tax period 2013-14 to 2016-17; that petitioner then filed letter on 26.11.2019 requesting the 1st respondent to grant one month time, but the 1st respondent granted only 15 days time by way of an endorsement. 5. Petitioner contends that it furnished to the 1st respondent vide letter dt.22.12.2019 (filed on 27.12.2019) all details for the tax period 2013-14 to 2017-18(up to June, 2017) and there was a discussion also by the petitioner's authorized representative with the 1st respondent. 6. According to the petitioner, 1st respondent issued a personal hearing notice dt.31.12.2019 directing the petitioner to appear for personal hearing on 07.01.2020. Thereafter, the authorized representative of the petitioner appeared personally and again discussed the transactions with the 1st respondent. 7. 6. According to the petitioner, 1st respondent issued a personal hearing notice dt.31.12.2019 directing the petitioner to appear for personal hearing on 07.01.2020. Thereafter, the authorized representative of the petitioner appeared personally and again discussed the transactions with the 1st respondent. 7. Petitioner contends that thereafter, the 1st respondent issued notice on 23.01.2020 stating that a perusal of the Annual Profit & Loss Account filed for the above years revealed that the petitioner had shown substantial payment towards Hire Charges for the vehicles leased and that the petitioner did not explain in its reply as to what the revenue receipts represent, i.e., whether they relate to lease of vehicles or transportation charges collected from the passengers, if it claims as a bus operator. 8. Petitioner was again afforded an opportunity of personal hearing by 1st respondent on 30.01.2020. Nothing was heard from the 1st respondent thereafter and on 13.03.2020, the impugned order was passed confirming the proposed levy of tax under the Telangana VAT Act for the tax period 2013-14 to 2017-18. 9. Petitioner contends that its authorized representative met the 1st respondent on 12.03.2020, that the 1st respondent was busy at that time with other official work and had asked him to come on 16.03.2020, and when he met the 1st respondent on 16.03.2020, he discovered that the impugned assessment order had already been passed by the 1st respondent on 13.03.2020 itself. 10. According to the petitioner, further objections had also been sought to be filed by the petitioner on 12.03.2020 but the petitioner's representative was asked to file them on 16.03.2020 and in the meantime, the impugned assessment order had been passed and this amounts to violation of principles of natural justice. 11. Counsel for the petitioner contends that the 1st respondent ought to have received the additional objections dt.12.03.2020 sought to be filed by the petitioner through its authorized representative on 12.03.2020 itself, and then passed the assessment order, but the 1st respondent cannot ask the authorized representative of the petitioner to come on 16.03.2020 and in the meantime clandestinely pass the impugned assessment order on 13.03.2020. 12. We find force in this contention. 13. Sri M.Govind Reddy, Special Counsel for Commercial Taxes also states on instructions that the 1st respondent would reconsider the matter if the matter is remitted back to the 1st respondent. 14. 12. We find force in this contention. 13. Sri M.Govind Reddy, Special Counsel for Commercial Taxes also states on instructions that the 1st respondent would reconsider the matter if the matter is remitted back to the 1st respondent. 14. In view of the said submissions, this Writ Petition is allowed; the impugned assessment proceedings dt.13.03.2020 for the tax period 2013-14 to 2016-17 passed by the 1st respondent is set aside; the matter is remitted back to the 1st respondent for fresh consideration; the 1st respondent shall permit the petitioner to file additional objections to the notice dt.23.01.2020 issued by the 1st respondent, if the petitioner so desires; afford a personal hearing to the petitioner; and then the 1st respondent shall pass a reasoned order in accordance with law and communicate it to the petitioner. All other questions raised by the petitioner are left open to be considered in a separate proceeding in case the petitioner chooses to file it later. No order as to costs. 15. Consequently, miscellaneous petitions, pending if any, shall stand closed.