Commercial Tax = As the one of director - wife was under treatment for cancer and as the opportunity was not given to submit the relevant records , the assessment order and 200% tax penalty order and attachment order was set aside on a condition to deposit the assessed amount in two installments - giving an opportunity to contest the case =
A counter affidavit has been filed whereunder an objection has been raised about the maintainability of the writ petition on account of availability of alternative remedy.
However, in the counter affidavit it was not denied about the serious illness of one of the Directors, and further on instructions the learned Government Pleader would submit that it is only on account of the petitioner not availing the opportunity given by placing the necessary records before the assessing officer, assessment order came to be passed.
7. Considering the peculiar facts of the case and considering the fact that it is only with respect to input tax credit, which they are otherwise entitled to subject to their satisfying and placing necessary records before the authorities, we consider it just, in the facts of the case to provide an opportunity to the petitioner to place all necessary papers before the assessing authority by relegating the petitioner to the assessing authority. However, considering the fact that there is already an assessment order has been passed, the assessment orders are set aside subject to the condition, the petitioner shall deposit a sum of Rs.41,40,679/- within a period of 8 weeks in two equal installments i.e. first installment on or before 30.09.2013 and second installment on or before 28.10.2013. On petitioner’s deposit of the said amount, petitioner is also given an opportunity to file their objections and any other material to support their claim for input tax credit availment, and thereafter the assessing officer may pass assessment proceedings after giving opportunity of personal hearing to the petitioner. The order dated 19.06.2012 relating to penalty and the orders dated 03.04.2013 relating to attachment notice are being consequential orders to the assessment Order dated 05.03.2012 and in the facts of this case and in view of the fact that we are setting aside the assessment order, the penalty proceedings and attachment notices cannot survive and as such the penalty order dated 19.06.2012 and the attachment notices dated 03.04.2013 are also set aside.
8. Accordingly, both the writ petitions are disposed of.
| WP 14331 / 2013 | WPSR 77908 / 2013 |
|
HON'BLE Ms. JUSTICE G. ROHINI
AND
HON’BLE SRI JUSTICE CHALLA KODANDA RAM
WRIT PETITION Nos.14331 and 14341 OF 2013
COMMON JUDGMENT:- (per Hon’ble Sri Justice Challa Kodanda Ram)
1. The petitioner company is a registered company under the Companies Act, and registered dealer on the rolls of Commercial Tax Officer (South) Vizianagaram. The petitioner is engaged in the business of manufacture and marketing of bio-fertilizers, tissue culture plants and other organic agriculture inputs.
2. In the writ petition No.14331 of 2013, the petitioner is questioning the assessment order dated 05.03.2012 for the period April, 2010 to June, 2011 and consequent attachment proceedings dated 03.04.2013 issued for recovery of the disputed tax.
3. In the Writ Petition No.14341 of 2013, the petitioner had questioned the assessment and demand of penalty order dated 19.06.2012 for the period April, 2010 to June, 2011, which is consequent assessment Order dated 05.03.2012.
4. In the affidavit filed by the petitioner it has been averred that the petitioner pursuant to the notice issued in Form VAT 304 dated 03.08.2011 proposing to disallow the input tax credit claimed by the petitioner for the period April 2010-June, 2011 (except June, 2010), and thereafter a notice of assessment in Form VAT 305-A, dated 14.09.2011, had filed all the purchase bills vide letter dated 16.09.2011.
Thereafter, the petitioner also requested time by a letter dated 21.09.2011 for production of records.
The respondents on the basis of the purchase invoice and VAT returns appears to have sent purchase extracts to his counterparts in Visakhapatnam
It appears that on the basis of their cross verification reports, the respondent has come to conclusion that no such transactions were made by the petitioner with respect to assesses in their jurisdiction;
that no tax was charged in respect of purchase details filed by the petitioner and hence a claim of input tax is irregular.
Further, for the month of June, 2010 also input tax credit was disallowed.
Thereafter, vide another letter dated 20.02.2012 was issued proposing to levy tax, which was served on 23.02.2012.
As this notice was not objected to by the petitioner, the Assessment Order dated 05.03.2012 came to be passed whereunder input tax credit to an extent of Rs.41,40,679/- was disallowed.
Subsequent to this assessment order, penalty notice dated 23.04.2012, proposing to levy penalty of Rs.82,80,318/- at the rate of 200% of the tax imposed, was also issued.
Though petitioner requested time through their letter dated 03.05.2012, as no objections were filed, further time of 10 days was given.
This notice was received on 07.06.2012 though 10 days time was expired on 06.06.2012 itself.
As the petitioner not received any response to its letter dated 21.09.2011, another letter dated 10.06.2012 was sent requesting to inform about the status. Thereafter, the petitioner was served with impugned assessment and penalty orders dated 05.03.2012 were served through registered post on 09.03.2012.
5. Petitioner has averred that the company is being run by himself and his wife, who was also another Director, and on account of serious illness of the another director, who is the deponent’s wife, the family was forced to stay at Hyderabad. The Director’s wife viz., Smt. K.Chaya, had to undergo chemotherapy and radiation procedures for breast cancer and in that process there were no one to attend to the business and also to respond to the notice issued to the petitioner company. Petitioner prays that he has all the documents in their possession and the matter relates only to the input tax credit, which the company is otherwise entitled to, and in that view of the matter, as there was no opportunity for the petitioner company to produce all these documents before the authorities, prays to set aside the assessment order and direct the respondent to give an opportunity to satisfy their claim with regard to input tax credit.
6. A counter affidavit has been filed whereunder an objection has been raised about the maintainability of the writ petition on account of availability of alternative remedy.
However, in the counter affidavit it was not denied about the serious illness of one of the Directors, and further on instructions the learned Government Pleader would submit that it is only on account of the petitioner not availing the opportunity given by placing the necessary records before the assessing officer, assessment order came to be passed.
7. Considering the peculiar facts of the case and considering the fact that it is only with respect to input tax credit, which they are otherwise entitled to subject to their satisfying and placing necessary records before the authorities, we consider it just, in the facts of the case to provide an opportunity to the petitioner to place all necessary papers before the assessing authority by relegating the petitioner to the assessing authority. However, considering the fact that there is already an assessment order has been passed, the assessment orders are set aside subject to the condition, the petitioner shall deposit a sum of Rs.41,40,679/- within a period of 8 weeks in two equal installments i.e. first installment on or before 30.09.2013 and second installment on or before 28.10.2013. On petitioner’s deposit of the said amount, petitioner is also given an opportunity to file their objections and any other material to support their claim for input tax credit availment, and thereafter the assessing officer may pass assessment proceedings after giving opportunity of personal hearing to the petitioner. The order dated 19.06.2012 relating to penalty and the orders dated 03.04.2013 relating to attachment notice are being consequential orders to the assessment Order dated 05.03.2012 and in the facts of this case and in view of the fact that we are setting aside the assessment order, the penalty proceedings and attachment notices cannot survive and as such the penalty order dated 19.06.2012 and the attachment notices dated 03.04.2013 are also set aside.
8. Accordingly, both the writ petitions are disposed of. No order as to costs. Miscellaneous petitions, if any, pending in these writ petitions shall stand closed.
_________________________
Ms. JUSTICE G. ROHINI
____________________________________
JUSTICE CHALLA KODANDA RAM
Date: 03.09.2013.
Ssv
HON'BLE Ms. JUSTICE G. ROHINI
AND
HON’BLE SRI JUSTICE CHALLA KODANDA RAM
WRIT PETITION No.14331 and 14341 OF 2013
Date:03.09.2013.
Ssv
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