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2022 DIGILAW 324 (AP)

Nazeer Industries v. Commercial Tax Officer

2022-03-21

C.PRAVEEN KUMAR, V.SUJATHA

body2022
ORDER : C.PRAVEEN KUMAR, J. 1) The present Writ Petition came to be filed under Article 226 of the Constitution of India, questioning the Assessment Order passed by the 1st Respondent on 04.02.2022 for the tax periods 08/2005 to 07/2009 under Andhra Pradesh Value Added Tax Act, 2005 (‘AP VAT Act, 2005’), as illegal, improper and contrary to law. 2) The facts, which lead to passing of the impugned order, are as under: (i) The Petitioner herein is a registered dealer under the AP VAT Act, 2005, under the rolls of 1st Respondent, doing business in manufacture and sale of machinery and its parts i.e., food processing equipments mainly for manufacturing of mango fruit pulp. (ii) The Assessing Authority conducted audit and passed an Assessment Order, dated 14.09.2009, for the above mentioned tax period under AP VAT Act, 2005, imposing tax on Body Beader, Fruit Mills, Tank, Fruit Washer, Tub Washer etc., @ 12.5% by treating the same as unclassified goods falling under V-Schedule. Challenging the said Assessment Order, the Petitioner preferred a statutory appeal under Section 31 of the AP VAT Act, 2005, vide Appeal No. 165/2009-2010 before the Appellate Deputy Commissioner (CT). By an Order, dated 25.08.2010, the said appeal along with other cases were disposed of holding that the goods sold by the Petitioner to the manufacturing and processing units fall under Serial No. 2 to Entry 102 of IV-Schedule to AP VAT Act, 2005, liable to be taxed @ 4%. Accordingly, the said Order of the Assessment Authority was set-aside and the matter was remanded back to the Primary Authority for passing orders afresh. Consequently, the matter was remanded back to the 1st Respondent. (iii) While things stood thus, the Additional Commissioner (CT) Legal in exercise of suo motu powers under Section 32(2) of AP VAT Act, 2005, revised the Order of the Appellate Authority on 23.04.2012 by setting aside the Order of the Appellate Authority and restoring the Order of the Assessment Officer. Consequently, the matter was remanded back to the 1st Respondent. (iii) While things stood thus, the Additional Commissioner (CT) Legal in exercise of suo motu powers under Section 32(2) of AP VAT Act, 2005, revised the Order of the Appellate Authority on 23.04.2012 by setting aside the Order of the Appellate Authority and restoring the Order of the Assessment Officer. (iv) The said Order came to be challenged by filing a statutory appeal before the AP VAT Appellate Tribunal at Visakhapatnam, vide T.A. No. 423 of 2016, which was disposed of by remanding the matter to the Assessment Authority for passing orders afresh in accordance with law, having regard to the Judgment of the High Court of Andhra Pradesh in M/s. Balaji Flour Mills V. Commercial Tax Officer-II, Chitoor Circle, (2011) 40 VST 150 (AP) within three months from the date of receipt of the order. (v) It is said that, pursuant to the order passed by the AP VAT Tribunal, on 30.11.2018, the 1st Respondent passed the Order impugned herein on 14.02.2022 reiterating the order passed earlier imposing tax on the goods @ 12.5% by treating the same as unclassified goods falling under residuary Schedule-V. Challenging the same, the present Writ Petition came to be filed mainly on the following grounds: a) Though the Tribunal directed the primary authority to pass orders within a period of three months from the date of receipt of the order, the 1st Respondent passed the order impugned nearly three years after receipt of the order of the Tribunal, which itself is sufficient to set-aside the order impugned. b) The Order passed pursuant to the remand by the Tribunal is barred by limitation in view of Subsection 3 or 4 read with Section 21 of the AP VAT Act, 2005; c) Though the authority superior to Assessing Authority found that the goods do fall under classified items, which according to the Petitioner is binding on the 1st Respondent, still the 1st Respondent reiterated its earlier stand by treating the goods as unclassified imposing tax @ 12.5%; d) While dealing with sister concern of the Petitioner, the Appellate Authority has held that the goods referred to fall under Entry 102 of Serial No.2 of the IV-Schedule of AP VAT Act, 2005, as such, the said order being final, is binding on the 1st Respondent. 3) In view of the above, the learned Counsel for the Petitioner, Sri. G. Narendra Chetty, submits that, the Order passed by the 1st Respondent is illegal and contrary to law. 4) On the other hand, Sri. Y.N. Vivekanand, learned Special Government Pleader for Commercial Taxes, would contend that, as the issue relating to limitation, is a mixed question of law and fact and whether the facts in sister concern of the Petitioner are identical to the case on hand, are matters which require adjudication by the Appellate Authority. In other words, his argument is that though the statue provides for an appeal, wherein, all the questions can be decided, the Petitioner ought not to have approached this Court under Article 226 of the Constitution of India. He relied upon a Judgment of the Hon’ble Apex Court in The Assistant Commissioner of State Tax and Others V. M/s. Commercial Steel Limited, (2021) SCC Online SC 884, in support of his plea. He further submits that the Judgment of this Court relied upon by the learned Counsel for the Petitioner may not come to his rescue for the reason that in the said case, the matter was once again remanded back to the primary authority for consideration in accordance with the law laid down after giving a fresh notice to the Petitioner therein. In other words, his argument is that, the issue in the said case is slightly different to the case on hand. Apart from that, he would submit that the advantage, if any, of the Division Bench Judgment can be taken in the statutory appeal, which the Petitioner is entitled to file. He further submits that, since the order impugned came to be passed in the month of February, 2022, and having regard to the Orders passed by this Court and Hon’ble Supreme Court extending the period of limitation, the Petitioner can as well approach the Appellate Authority. 5) As seen from the arguments advances by the learned Counsel for the Petitioner, various issues came to be raised, which involves disputed factual aspects as well, more so, as to the period of limitation and also as to whether the claim of the Petitioner seeking payment of tax @ 4% has to be accepted, more so, having regard to the different stand taken by the Appellate Authority as well as by the Revisional Authority in the suo motu revision. 6) In The Assistant Commissioner of State Tax and Others [cited 2nd supra], the Hon’ble Supreme Court while dealing with the issue relating to statutory remedy under Section 107 of the C.G.S.T. Act, held in paragraph No. 11 as under: “11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation.” 7) In the present case, as stated earlier, neither there is breach of any fundamental rights or an excess of jurisdiction nor is there a challenge to the vires of the statue or delegated legislation. The learned Counsel for the Petitioner mainly submits that, his case would fall under the category of violation of ‘principles of natural justice’, but, the record nowhere indicate any order being passed without hearing the Petitioner. A perusal of the interim order would show that personal hearing was accorded on 31.01.2022. Therefore, even the said ground may not be available to the case of the Petitioner. Further, a perusal of the order impugned, dated 04.02.2022, would show that the Commercial Tax Officer, Chittoor Circle-I, passed a detailed order dealing with various aspects and ultimately held that the dealer has committed an offence under AP VAT Act, 2005. The Order also indicates that the Petitioner has got an opportunity of preferring an appeal before the Appellate Deputy Commissioner, within 30 days from the date of receipt of the order. 8) In view of the Judgment of the Hon’ble Supreme Court, referred to above, and having regard to the fact that the Petitioner has got remedy of Appeal, wherein, he can raise all the pleas taken now, the present Writ Petition is dismissed leaving it open to the Petitioner to avail the remedy available under law. No order as to costs. It is needless to mention that the period of pendency of this writ petition may be excluded while calculating the period of limitation. No order as to costs. It is needless to mention that the period of pendency of this writ petition may be excluded while calculating the period of limitation. 9) Consequently, the miscellaneous petitions pending, if any, shall stands closed.