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2020 DIGILAW 724 (TS)

Mis Marvel Hospitality Services P Ltd v. Assistant Commissioner Ct Ltu

2020-10-08

M.S.RAMACHANDRA RAO, T.AMARNATH GOUD

body2020
JUDGMENT M.S.Ramachandra Rao, J. - In this Writ Petition, the petitioner has assailed the Penal Interest Order in A.O.No.58271 dt.21.08.2020 and Penalty Order in A.O.No.58273 dt.21.08.2020 passed by the 1st respondent, which were served on the petitioner on 31.08.2020 for the period 2016-17 under the T.S. VAT Act, 2005. 2. Earlier on 27.06.2018, the 1st respondent had levied penal interest and penalty on the petitioner by Proceedings dt.27.06.2018 contending that tax payments were made belatedly by the petitioner for the tax periods April, 2016 to June, 2016, September, 2016, October, 2016 and December, 2016 to March, 2017. This was not preceded by any showcause notice. 3. Challenging the same, the petitioner filed W.P.No.45071 of 2018. On 30.01.2019, the said Writ Petition was disposed of setting aside the said order dt.27.6.2018 on the ground that the procedure prescribed by Rule 24(4) of the A.P. VAT Rules, 2005 was not followed. This Court therefore directed the petitioner to file objections and the 1st respondent to pass orders afresh. 4. Thereafter, the 1st respondent issued notice dt.01.11.2019 asking the petitioner to file objections treating his previous order dt.27.06.2018 as show-cause notice. 5. The petitioner filed objections dt.21.11.2019 on 22.11.2019 contending that it is engaged in the business of catering services, that it is carrying out such service to SEZ Units only, for which there is no tax liability, and in respect of the services rendered in non-SEZ Units, they have paid taxes. It also pointed out that the delay in making payment was negligible and though interest levied may be valid, levy of penalty under Section 51(1) of the A.P. VAT Act is not justified. It was also stated that delay, if any, was caused on account of non-receipt of amount from a person to whom service was provided and the delay was not willful and wanton but on account of the above bonafide reason. 6. Thereafter, the 1st respondent issued notice dt.18.12.2019 asking the petitioner to attend for personal hearing on 27.12.2019. 7. The petitioner filed a letter dt.27.12.2019 stating that there was no delay for some periods and there was very little delay for other periods. 6. Thereafter, the 1st respondent issued notice dt.18.12.2019 asking the petitioner to attend for personal hearing on 27.12.2019. 7. The petitioner filed a letter dt.27.12.2019 stating that there was no delay for some periods and there was very little delay for other periods. It was also contended that due to certain technical errors, such as bank server issues and breakdown of Telangana Government Commercial Taxes Portal, some times payments were delayed for one or two days in some months, and requested the 1st respondent to drop the penal interest and penalty proposed. 8. However, the 1st respondent passed the impugned orders on 21.08.2020 levying both penal interest and penalty by separate Proceedings without considering the objections by merely stating that the contention of the petitioner is not considered. There is no discussion about the detailed objections filed by the petitioner on 21.11.2019 or reply dt.27.12.2019. 9. Since there is non-consideration of the objections dt.21.11.2019 or reply dt.27.12.2019 filed by the petitioner to the show-cause notice dt.01.11.2019, the impugned Penalty Order as well as Penal Interest Order cannot be sustained. 10. This Court had taken a similar view in the Order dt.02.01.2020 in W.P.No.17583 of 2017 and the Order dt.28.09.2012 in W.P.Nos.29331 and 29316 of 2012 apart from the order reported in 41 APSTJ 99 holding that while passing an assessment order under the A.P. VAT Act, the assessing authority is under an obligation not only to refer the contents of the explanation submitted by the dealer in detail but it should also record the reasons if the explanation, for any reason, is not acceptable. 11. In this view of the matter, the Writ Petition is allowed; the impugned Assessment Order No.58271 dt.21.08.2020 levying penal interest and the Assessment Order No.58273 dt.21.08.2020 levying penalty are both set aside; the matters are remanded to the 1st respondent to consider the objections dt.21.11.2019 and 27.12.2019 filed by the petitioner, provide a personal hearing to the petitioner, pass a reasoned order in accordance with law and communicate the same to the petitioner. No costs. 12. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.