Andhra Pradesh Value Added Tax Act, 2005 (for short, ‘the Act’) = Without authorization an inspecting officer can not pass an orders of assessment of the value added tax and consequential penalty made in Forms VAT 305 & 203 =
W.P.No.30788 of 2012 is filed aggrieved by the assessment made by the respondent No.1 under the provisions of the Andhra Pradesh Value Added Tax Act, 2005 (for short, ‘the Act’) in Form VAT 305 whereas W.P.No.4046 of 2013 is filed aggrieved by the consequential penalty order dated 03.12.2012 made in Form VAT 203. =
respondent No.1 was not authorised to make the assessment since the authorisation given to him was only to inspect the business premises. The petitioner has placed before this Court the authorisation in Rc.No.136/A5/2009, dated 06.01.2012 in which the respondent No.1 was authorised only to inspect the business premises making it clear that he may request for authorisation for assessment under Section 21 of the Act on the basis of the incriminating evidence gathered/record obtained during inspection and verification. Thus, it is contended by the writ petitioner that the respondent No.1 was not authorised at all to make the assessment.
We have also noticed that the authorisation dated 06.01.2012 produced before this Court by the writ petitioner contains a specific reference i.e., Rc.No.136/A5/2009 and the show-cause notice dated 22.06.2012 also refers to the very same authorisation bearing Rc.No.136/A5/2009, dated 06.01.2012. However, the authorisation dated 18.06.2012 placed before this Court by the respondents does not contain any reference number.
Having noticed the said discrepancy, this Court passed a detailed order on 08.10.2012 directing the respondent No.4 to inform this Court whether the authorisation for passing order of assessment was issued without any reference number. In response to the said order, though the Commissioner, Commercial Taxes filed a counter affidavit, the information sought by this Court is not furnished, but it is reiterated that though there was a subsequent authorisation dated 18.06.2012, by mistake the same was not mentioned in the show-cause notice.
In the facts and circumstances noticed above, the stand taken in the counter affidavit that there was a subsequent authorisation dated 18.06.2012 does not appear to be credible and we are unable to accept the same. Consequently, we deem it appropriate to give the benefit of doubt to the tax payer.
Therefore, the impugned order of assessment as well as the penalty order are hereby set aside and both the Writ Petitions are disposed of leaving it open to the respondents to pass appropriate orders afresh following due process of law. No costs.
| WP 4046 / 2013 | WPSR 21370 / 2013 |
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THE HON’BLE Ms. JUSTICE G.ROHINI
And
THE HON’BLE SRI JUSTICE CHALLA KODANDA RAM
WRIT PETITION No.30788 OF 2012
And
WRIT PETITION No.4046 OF 2013
Dated: 22.07.2013
Between:
M/s. VDB Sugars Limited
.. Petitioner
And
Assistant Commissioner (CT) (VMU-I)
Nellore Division and 3 others
.. Respondents
THE HON’BLE Ms. JUSTICE G.ROHINI
And
THE HON’BLE SRI JUSTICE CHALLA KODANDA RAM
WRIT PETITION No.30788 OF 2012
And
WRIT PETITION No.4046 OF 2013
COMMON ORDER: (Per Hon’ble Ms. Justice G.Rohini)
The petitioner in both the writ petitions is a company engaged in the business of manufacturing and marketing of sugar. W.P.No.30788 of 2012 is filed aggrieved by the assessment made by the respondent No.1 under the provisions of the Andhra Pradesh Value Added Tax Act, 2005 (for short, ‘the Act’) in Form VAT 305 whereas W.P.No.4046 of 2013 is filed aggrieved by the consequential penalty order dated 03.12.2012 made in Form VAT 203.
We have heard the learned counsel for both parties and perused the material available on record.
The impugned orders are assailed primarily on the ground that the respondent No.1 was not authorised to make the assessment since the authorisation given to him was only to inspect the business premises. The petitioner has placed before this Court the authorisation in Rc.No.136/A5/2009, dated 06.01.2012 in which the respondent No.1 was authorised only to inspect the business premises making it clear that he may request for authorisation for assessment under Section 21 of the Act on the basis of the incriminating evidence gathered/record obtained during inspection and verification. Thus, it is contended by the writ petitioner that the respondent No.1 was not authorised at all to make the assessment.
In the counter affidavit filed by the Commissioner of Commercial Taxes, it is pleaded that on completion of the audit on 05.05.2012, the Deputy Commissioner (CT) issued a separate authorisation for assessment on 18.06.2012 and on the basis of the said authorisation, the show-cause notice dated 22.06.2012 was served on the petitioner followed by the impugned assessment order. It is also explained in the counter affidavit that the date of authorisation for assessment was mentioned as 06.01.2012 in the show-cause notice by mistake and actually the date of authorisation for audit is 06.01.2012 and the date of authorisation for assessment is 18.06.2012.
The stand taken in the counter affidavit has been categorically denied by the petitioner in the reply affidavit. It is pleaded that generally the practice of the department is to serve notices and orders at the residence of CEO/GM in Nellore because the factory is nearly 60 kilometers away from Nellore Town and therefore, the stand taken by the respondents in the counter affidavit that it was affixed to the factory gate on 22.06.2012 as the factory was closed due to dharna by farmers is absolutely false and without any basis. It is also specifically pleaded that the farmers dharna was in the month of August, 2012 and not in the month of June or July, 2012 as sought to be contended in the counter affidavit. To substantiate the plea taken by it, the writ petitioner along with its reply affidavit produced the day wise employee attendance particulars which shows that the factory was very much functioning during June, 2012, particularly on 22.06.2012.
We have also noticed that the authorisation dated 06.01.2012 produced before this Court by the writ petitioner contains a specific reference i.e., Rc.No.136/A5/2009 and the show-cause notice dated 22.06.2012 also refers to the very same authorisation bearing Rc.No.136/A5/2009, dated 06.01.2012. However, the authorisation dated 18.06.2012 placed before this Court by the respondents does not contain any reference number.
Having noticed the said discrepancy, this Court passed a detailed order on 08.10.2012 directing the respondent No.4 to inform this Court whether the authorisation for passing order of assessment was issued without any reference number. In response to the said order, though the Commissioner, Commercial Taxes filed a counter affidavit, the information sought by this Court is not furnished, but it is reiterated that though there was a subsequent authorisation dated 18.06.2012, by mistake the same was not mentioned in the show-cause notice.
In the facts and circumstances noticed above, the stand taken in the counter affidavit that there was a subsequent authorisation dated 18.06.2012 does not appear to be credible and we are unable to accept the same. Consequently, we deem it appropriate to give the benefit of doubt to the tax payer.
Therefore, the impugned order of assessment as well as the penalty order are hereby set aside and both the Writ Petitions are disposed of leaving it open to the respondents to pass appropriate orders afresh following due process of law. No costs.
Consequently, Miscellaneous Petitions, if any, pending in both the writ petitions shall stand closed.
____________
G.ROHINI, J
___________________________ CHALLA KODANDA RAM, J
Date: 22.07.2013
Ivd
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