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2020 DIGILAW 586 (TS)

Mallemaala Entertainments Private Limited v. Deputy Commercial Tax Officer

2020-07-30

M.S.RAMACHANDRA RAO, T.AMARNATH GOUD

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JUDGMENT M.S. Ramachandra Rao, J. - In this Writ Petition the petitioner assails the Assessment Order No.43602 dt.29.03.2020 passed by the 1st respondent for the tax period April, 2015 to March, 2016 (Central Sales Tax). 2. The petitioner is M/s. Mallemala Entertainments Pvt. Ltd. (for short, 'MEPL'). 3. Another company by name M/s.Mallemala Agro Pvt. Ltd. (for short, 'MAPL') was a dealer in poultry and by-products. 4. M/S. MAPL commenced its business in the year 2015 and obtained registration under the Telangana VAT Act, 2005 from the 1st respondent and also under the Central Sales Tax Act, 1956. 5. Pursuant to an order dt.03.05.2017 passed by the National Company Law Tribunal (NCLT), Hyderabad, MAPL was amalgamated with MEPL w.e.f. 01.04.2015. 6. According to the petitioner, MAPL did not have any turnover under the Central Sales Tax Act and filed 'Nil' returns from June, 2015 to March, 2016 with nil turnover, but in respect of VAT returns it reported a turnover of Rs.23,51,62,401/-. According to poetitioner, there was no tax liability since the products sold were goods which were exempt under Entry 24 of the I Schedule to the Act. 7. A show-cause notice was allegedly issued by the 1st respondent proposing to levy tax on turnover of Rs.31,21,764/- allegedly for inter-State sales effected by MAPL, but the petitioner contends that it did not receive it. 8. The petitioner contends that it received a reminder notice on 18.11.2019 addressed by MAPL by e-mail, and that by e-mail dt.16.11.2019 it informed the 1st respondent that the assessee, i.e., MAPL had been merged with the petitioner by order of the NCLT, Hyderabad w.e.f. 01.04.2015, and that the turnover of the amalgamated entity ought to be assessed in the name of the petitioner, and the assessment of the petitioner was also alive before the 2nd respondent. 9. The petitioner contends that it did not receive any response from the 1st respondent, but instead received the impugned order on 30.06.2020 confirming the liability at 14.5% for a sum of Rs.4,52,656/- on the ground that the assessee MAPL failed to respond to any of the notices issued by the 1st respondent. 10. 9. The petitioner contends that it did not receive any response from the 1st respondent, but instead received the impugned order on 30.06.2020 confirming the liability at 14.5% for a sum of Rs.4,52,656/- on the ground that the assessee MAPL failed to respond to any of the notices issued by the 1st respondent. 10. The petitioner contends that post-amalgamation of MAPL and MEPL, the jurisdictional officer for MAPL also would be the 2nd respondent who is the jurisdictional officer for MEPL, and the order passed by the 1st respondent is thus null and void; and that the said assessment order passed by the 1st respondent on 29.03.2020 is in violation of principles of natural justice since there was no service of show-cause notice in the first instance on the assessee MAPL or on MEPL, and that the impugned assessment order did not even mention the date of the alleged show-cause notice or the date of it's service on MAPL. 11. It is contended that though the petitioner filed an e-mail reply on 26.11.2019 to the reminder notice dt.18.11.2019 issued by the 1st respondent, the 1st respondent observed in the impugned order that no objections were filed; and that the final notice said to have been issued on 06.03.2020 by the 1st respondent was also not received by the petitioner. 12. Apart from these contentions, it is alleged that the assessment is barred by time for the period up to February, 2016 under Sub-Rule (5- A) of Rule 14-A of the Central Sales Tax (Telangana) Rules, 1957. 13. Sri J. Anil Kumar, Special Counsel for Commercial Taxes, appearing for respondents, does not dispute the fact that after the assessee MAPL got amalgamated with the petitioner MEPL, the 1st respondent cannot pass an assessment order in respect of MAPL which ceased to exist. He could not explain why the 1st respondent passed the impugned assessment order in respect of MAPL in spite of being issued a reply on 26.11.2019 to the e-mail dt.18.11.2019 issued by the 1st respondent informing the 1st respondent that MAPL had been merged with the petitioner by order of NCLT w.e.f. 01.04.2015. 14. We have noted the submissions of both sides. 15. The impugned assessment order has been passed by the 1st respondent on 23.09.2020 with respect to the assessee, MAPL. 14. We have noted the submissions of both sides. 15. The impugned assessment order has been passed by the 1st respondent on 23.09.2020 with respect to the assessee, MAPL. But, MAPL had been merged with the petitioner, MEPL vide order dt.03.05.2017 of the NCLT, Hyderabad w.e.f. 01.04.2015. This fact had been informed by the petitioner by e-mail dt.26.11.2019 to the 1st respondent enclosing copy of the order of the NCLT. 16. Therefore, the 1st respondent, who is the Assessing Officer of the MAPL, ought to have dropped further proceedings since the assessee was no longer in existence. 17. Also, there is no date of the show-cause said to have been given to MAPL mentioned in the impugned order, and the petitioner denies having received it and also the reminder notice dt.06.03.2020 mentioned in the impugned order. Thus, there is also a violation of principles of natural justice. 18. In our considered opinion, the turnover of MAPL, the amalgamated entity ought to be assessed in the name of the petitioner with whom it is merged. The assessment of the petitioner is admittedly alive before the 2nd respondent. 19. Accordingly, the Writ Petition is allowed. The impugned Assessment Order No.43602 dt.29.03.2020 passed by the 1st respondent in respect of MAPL is set aside; the 2nd respondent, who is the assessing authority of petitioner with whom MAPL has been merged is permitted to issue a show-cause notice to the petitioner in respect of turnover of the MAPL for the period April, 2015 to March, 2016. 20. The petitioner is granted six (06) weeks' time from the date of receipt of the said show-cause notice from the 2nd respondent to file objections to the said show-cause notice including the plea of bar of limitation under Sub-Rule (5-A) of Rule 14-A of the Central Sales Tax Telangana Rules, 1957 and also permitted to file supporting material; and a personal hearing shall also be afforded to petitioner by the 2nd respondent; and thereafter, a reasoned order in accordance with law shall be passed by the 1st respondent and communicated to the petitioner. 21. Accordingly, the Writ Petition is allowed as above. No order as to costs. 22. As a sequel, miscellaneous petitions pending if any in this Writ Petition, shall stand closed.