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Wednesday, May 15, 2024

writ of mandamus declaring the action of respondents in directing the petitioner’s school to obtain dealer registration under Andhra Pradesh Value Added Tax (AP VAT) Act, 2005 and their action in assessing the petitioner’s school under the said Act for the period 01.04.2005 to 31.12.2005 vide order dated 08.03.2006 is arbitrary, illegal and violative of Articles 14, 19, 21A and 265 of the Constitution of India and to set aside the same and pass such other orders.

HIGH COURT OF ANDHRA PRADESH

MONDAY ,THE THIRTIETH DAY OF JANUARY

TWO THOUSAND AND TWENTY THREE

PRSENT

THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO

THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO

WRIT PETITION NO: 7417 OF 2006

Between:

1. Bharatiya Vidya Bhavan's Residential Public School, (Sponsored by

Bharatiya Vidya Bhavan, Mumbai),

Vidyashram-Pedatadepalli (P.O), Tadepalligudem-534 203,

West Godavari District,

Rep by its Honorary Secretary,

...PETITIONER(S)

AND:

1. The State of A.P., Rep by the Secretary to Government, Commercial

Taxes,

Secretariat, Hyderabad.

2. Commercial Tax Officer, Tadepalligudem Circle, Tadepalligudem, West

Godavari District.

...RESPONDENTS

Counsel for the Petitioner(s): R SUDHEER

Counsel for the Respondents: GP FOR COMMERCIAL TAX

The Court made the following: ORDER

2023:APHC:2647

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

W.P.No.7417 of 2006

Between:

Bharatiya Vidya Bhavan’s Residential Public School

(Sponsored by Bharatiya Vidya Bhavan, Mumbai)

Vidyashram – Pedatadepalli (P.O),

Tadepalligudem – 534 203,

West Godavari District.

Rep. by its Honorary Secretary, Sri B.V. Seshagiri Rao .. Petitioner

And

The State of Andhra Pradesh,

Rep. by the Secretary to Government,

Commercial Taxes,

Secretariat, Hyderabad & another .. Respondents

DATE OF JUDGMENT PRONOUNCED: 30.01.2023

SUBMITTED FOR APPROVAL:

HON’BLE SRI JUSTICE U. DURGA PRASAD RAO

HON’BLE SRI JUSTICE T. MALLIKARJUNA RAO

1. Whether Reporters of Local newspapers Yes/No

 may be allowed to see the Judgments?

2. Whether the copies of judgment may be Yes/No

 marked to Law Reporters/Journals?

3. Whether Their Ladyship/Lordship wish to Yes/No

 see the fair copy of the Judgment?

__________________________

U. DURGA PRASAD RAO, J

___________________________

T. MALLIKARJUNA RAO, J

2023:APHC:2647

2

*HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

AND

HON’BLE SRI JUSTICE T. MALLIKARJUNA RAO

+W.P.No.7417 of 2006

%30.01.2023

# Bharatiya Vidya Bhavan’s Residential Public School

 (Sponsored by Bharatiya Vidya Bhavan, Mumbai)

 Vidyashram – Pedatadepalli (P.O),

 Tadepalligudem – 534 203,

 West Godavari District.

 Rep. by its Honorary Secretary, Sri B.V. Seshagiri Rao .. Petitioner

Vs.

$ The State of Andhra Pradesh,

 Rep. by the Secretary to Government,

 Commercial Taxes,

 Secretariat, Hyderabad & another .. Respondents

<GIST:

>HEAD NOTE:

! Counsel for petitioner : Sri R. Sudheer

^Counsel for Respondents : Government Pleader for Commercial

 Taxes


< Gist:

> Head Note:

? Cases referred:

1. MANU/UP/0242/1974

2. AIR 1999SC22 = MANU/SC/0664/1998

2023:APHC:2647

3

HON’BL SRI JUSTICE U. DURGA PRASAD RAO

AND

HON’BLE SRI JUSTICE T. MALLIKARJUNA RAO

W.P.No.7417 OF 2006

ORDER: (Per Hon’ble Sri Justice U. Durga Prasad Rao)

 Petitioner seeks writ of mandamus declaring the action of

respondents in directing the petitioner’s school to obtain dealer

registration under Andhra Pradesh Value Added Tax (AP VAT) Act,

2005 and their action in assessing the petitioner’s school under the

said Act for the period 01.04.2005 to 31.12.2005 vide order dated

08.03.2006 is arbitrary, illegal and violative of Articles 14, 19, 21A

and 265 of the Constitution of India and to set aside the same and

pass such other orders.

2. Petitioner’s case succinctly is thus:

 (a) Petitioner is Bharatiya Vidya Bhavan’s Residential Public

School located at Vidyashram, Pedatadepalli (PO), West Godavari

District. The Bharatiya Vidya Bhavan is a public trust registered

under Bombay Public Trust Act bearing Registration No.F-358

(Bom). The petitioner’s school was established in the year 1983 with

2023:APHC:2647

4

an object to provide education on non-profit basis. It was established

by the Philanthropists for development of society. The petitioner’s

school is run on non-profit basis. The school offers courses from

LKG to 10th standard as is recognized by Central Board of Secondary

Education (CBSE), New Delhi. As on the date of writ petition, the

petitioner’s school has 832 students and 70 staff members of both

teaching and non-teaching category. A number of schools were

sponsored by Bharatiya Vidya Bhavan in the State of Andhra Pradesh

and petitioner’s school is one among them.

 (b) The further case of the petitioner is that the Government of

India having recognized services of Bharatiya Vidya Bhavan, notified

the society as an educational institution of national eminence for the

purpose of Section 80(g)(1) of the Income Tax Act, 1962 (for short

‘I.T. Act’). As a result, the funds and donations received by the

society and the institutions sponsored by it are eligible for exemption

U/s 80 (g)(1) of the I.T Act. The petitioner’s school is being run from

out of the donations received by it. Apart from the donations,

petitioner’s school collects nominal fees and mess charges from the

students. During the financial year 2004-05, the petitioner’s

2023:APHC:2647

5

institution had a surplus of Rs.2.87 lakhs which was remitted to

Bharatiya Vidya Bhavan Society. The petitioner’s school does not

retain any surplus amounts with it. Petitioner’s accounts are audited

by the auditors appointed by the Bharatiya Vidya Bhavan Society.

All these facts would manifest that petitioner’s school is a non-profit

entity engaged in dissemination of knowledge in the spheres of

culture, arts and science. It is further submitted that the maintenance

of hostels by the petitioner’s school is incidental, ancillary and

connected with the main object and activity of imparting education.

(c) While so, the 2nd respondent visited the petitioner’s school

on 10.12.2005 and inspected the records. Thereafter he issued a

notice dated 30.12.2005 and called for the sales turnover for the

period up to 30.12.2005 along with the Form-100 and directed the

petitioner to obtain registration under the provisions of AP VAT Act,

2005. Subsequently 2nd respondent issued notice of assessment under

AP VAT Act,2005 on 17.02.2006 proposing to levy VAT for the

period 01.04.2005 to 01.01.2006 amounting to Rs.3,67,050/- on the

ground that the petitioner’s school sells the food items and thus

treated the activity of the petitioner in providing food as a business of

2023:APHC:2647

6

running restaurant / hotel for the purpose of the AP VAT Act, 2005.

The said act of 2nd respondent is arbitrary, illegal and unconstitutional.

 (d) For the purpose of AP VAT Act a dealer is one who carries

on the business of buying, selling, supplying or distributing goods for

cash or deferred payments and includes any person who in the course

of business of running a restaurant or eating house or hotel, sells or

supplies by way of or as a part of any service, goods being food or

any other article for human consumption. Therefore, for the purpose

of bringing any person within the fold of Section 2(10) i.e., the

definition of dealer under the AP VAT Act, the said person shall have

to carry on the business of buying, selling of goods and in the course

of a person selling or supplying food or any other article for human

consumption, the same will have to be made in the course of business

of running a restaurant or eating house or hotel. The petitioner is

concerned, it is engaged in the activity of providing education to the

children in the age group of 3+ to 15 years. The activity of providing

education will not qualify to be an activity connected with trade,

commerce or manufacture and as such the petitioner cannot be termed

2023:APHC:2647

7

as a dealer for the purpose of APGST and VAT Acts and the

provisions of those enactments are not applicable to the petitioner

institution. The supply of food by the petitioner’s school to its

students is not being made in the course of business and running

restaurant, eating house or hotel. Whereas, Section 2(10(d) of the

VAT Act specifically refers to only a restaurant, eating house or a

hotel. Hence the said act has no application to the petitioner.

 Hence the writ petition.

3. The 1st respondent filed counter and opposed the writ petition

contending thus:

 (a) The petitioner got alternative efficacious remedy by way of

an appeal against the impugned order and hence the writ petition is

not maintainable. It is submitted that the petitioner is an educational

institution imparting education to the students of various classes.

Apart from imparting education, the petitioner is running hostel for

boarders supplying food for valuable consideration. After advent of

AP Value Added Tax Act, 2005 w.e.f 01.04.2005, a similar petitioner

made an application U/s 67 of the said Act seeking clarification from

Advance Ruling Authority under the AP VAT Act (i) as to whether

2023:APHC:2647

8

their line of activity would come within the meaning of business and

whether the hostel run by them is liable for registration under the

VAT Act, (ii) If the hostel is maintained by students themselves,

whether registration is required under VAT Act and (iii) Whether

G.O.Ms.No.1036 C.T.II, Department, dt: 20.10.1989 issued under the

APGST Act granting exemption to the educational institutions would

apply even to the VAT Act. The Advance Ruling Authority vide its

proceedings dated 11.11.2005 and clarified that in view of

explanation V to Section 2(28) of the VAT Act, the supply of food

and beverages by the petitioner is liable for registration U/s 17 of

VAT Act and also liable to tax U/s 4(9) of the VAT Act. It was

further clarified that in view of Article 366 Claus 29 A (f) of the

Constitution, Section 2(10) of AP VAT Act prescribes any

association which distributes goods to its members, any incorporated

body or unincorporated body is also liable to tax. Thus the Advance

Ruling Authority clarified that G.O.Ms.No.1036 has no application to

the VAT Act. The said ruling is binding on all the officers of

Department except the Commissioner (CT). Ergo, the 2nd respondent

issued notice dated 30.12.2005 requiring the petitioner to file VAT -

2023:APHC:2647

9

100 Form for the purpose of registration under the AP VAT Act,

2005 within 7 days. However, the petitioner failed to get himself

registered. However, the petitioner submitted a broucher and

computer extract of the ledger for the period 01.04.2005 to

30.11.2005 which would show, the petitioner received the mess

income of Rs.28,18,950/-, out of which Rs.23,49,125/- is attributable

to the sale value of the food and beverages supplied to the students in

the hostel. This amount is proposed for assessment U/s 21 of AP

VAT Act, 2005. Accordingly, show cause notice was issued

proposing tax @ 12.5% on the above turnover. Receiving the notice,

the petitioner did not file objections. Hence the assessment order was

passed on 08.03.2006 raising demand of Rs.2,93,640/- with penalty of

Rs.73,410/- . Hence the writ petition is not maintable and same is

liable to dismissed.

4. Heard argument of Sri R. Sudheer, learned counsel for the

petitioner and learned G.P. for Commercial Taxes representing

respondents.

5. It is the contention of learned counsel for petitioner that

predominantly the activities of petitioner’s educational institution are

2023:APHC:2647

10

in the nature of furtherance of objects of Bharati Vidya Bhavan which

is a public trust and is undertaking several philanthropic activities one

of which is imparting education on non-profit basis. Therefore,

petitioner’s educational institution shall, by no stretch of imagination,

be treated as a ‘dealer’ within the mischief of Section-2(10) of AP

VAT Act, 2005 since there is no element of business, trade or

commerce undertaken by the petitioner’s educational institution. So

far as supply of food items and beverages to the students in the hostel

by collecting mess charges is concerned, the said activity is only

incidental, ancillary and auxiliary to the main function of the

petitioner’s institute, which is obviously imparting education and as

such the supply of food articles and collection of nominal charges

from the boarders cannot be treated as an independent business

activity dehors the main function of purveying education with a nonprofit attitude. He would thus perore that the 2nd respondent’s

decision to assess petitioner’s educational institution to tax under AP

VAT Act in respect of the mess income of the institute treating the

same as sale value is wholly illegal and beyond the scope of the

provisions of the AP VAT Act, besides being unjust. He placed

2023:APHC:2647

11

reliance on the decision The Indian Institute of Technology vs.

State of U.P1

.

6. Per contra, learned Government Pleader for commercial Taxes

while opposing the writ petition would argue that the writ petition is

not maintainable in view of the availability of efficacious of

alternative remedy of appeal. Nextly, regarding the merits of

petitioner’s case, learned Government Pleader, though not

specifically denied either in his counter or in his argument that

petitioner’s educational institute was sponsored by its parent society

i.e., Bharatiya Vidya Bhavan to impart education through its various

educational institutions as a philanthropic measure and on a nonprofit basis, however, would argue that the petitioner institute

maintains hostel for its boarders and sells food items and beverages

and collects charges from them which activity squarely comes under

the term ‘business’, inasmuch as, the supply of food articles is not a

free service but sale of goods and therefore the income earned out of

sale of food stuff is exigible to tax under the provisions of AP VAT

Act. He further argued that a similar petitioner has already sought for


1

 MANU/UP/0242/1974

2023:APHC:2647

12

clarification from the Advance Ruling Authority and the learned

ARA clarified that any association, incorporated body or

unincorporated body which supplies food and beverages is liable to

tax U/s 4(9) of the VAT Act. As such, on the same analogy the

petitioner institute is also liable for tax. He thus prayed to dismiss the

writ petition.

7. The point for consideration is whether the petitioner’s educational

institution imparts education on non-profit motive but not on

commercial basis and if so, it is exempted from tax under AP VAT

Act, 2005?

8. Regarding the nature of petitioner’s educational institution, as

already observed supra, the respondent did not dispute that the

petitioner institute was founded by M/s.Bharatiya Vidya Bhavan,

Mumbai, a Public Trust. It is also not disputed that the said trust was

established with philanthropic philosophy for the development of the

society and one of its objects is to establish educational institutions

and disseminate knowledge without commercial or lucrative attitude.

The copy of certificate of registration filed along with material papers

by the petitioner shows that Bharatiya Vidya Bhavan was registered

2023:APHC:2647

13

under the Societies Registration Act vide Registration No.946/1939-

1940. Then the notification dated 12.04.2001 issued by the Director

General of Tax (Exemptions), Calcutta, a copy of which is filed by

the petitioner, shows that Bharatiya Vidya Bhavan, Mumbai, was

recognized as Educational Institution of National Eminence under

Section 80(g)(2)(iii)(f) of the Income Tax Act, meaning thereby all

the donations made to the Bhavan are wholly deductable for income

tax purposes. Then, the copies of the letter heads of the petitioner’s

educational institute shows that the same is mentioned as Bharatiya

Vidya Bhavan’s residential public school. Therefore, there can be no

demur that petitioner’s educational institution comes under Bharatiya

Vidya Bhavan’s public trust and its activity of imparting education is

not in commercial lines and on profit motive. In this backdrop, it has

now to be seen whether the petitioner institute is exigible to tax under

A.P. VAT Act.

9. (a) A.P. VAT Act, 2005 is a consolidated law relating to

levy of value added tax on sale or purchase of goods in the state of

A.P. and for matters connected therewith and incidental thereto.

Section 4(1) lays down that every dealer registered is liable to be

2023:APHC:2647

14

registered as a VAT dealer shall be liable to pay tax on every sale of

goods in the State at the rate specified in the schedules.

(b) Section 4(4) lays down that every VAT dealer who in the

course of his business purchases any taxable goods from a person or a

dealer not registered as a VAT dealer or from a VAT dealer in

circumstances in which no tax is payable by the selling VAT dealer,

shall be liable to pay tax.

(c) Section 4(7) lays down that every dealer executing

works contract shall pay tax on the value of the goods at the time of

incorporation of such goods in the works executed at the rates

applicable to the goods under the Act.

(d) Then, Section 4(9) lays down that every dealer running

any restaurant, eating house, catering establishment, hotel, coffee

shop, sweet shop or any establishment by whatever name called and

any club, who supplies by way of or as a part of any services or in

any other manner whatsoever of goods being food or any other article

for human consumption or drink, shall pay tax.

2023:APHC:2647

15

10. Thus, Section 4 delineates that different categories of persons

such as sellers, purchasers, persons executing works contracts and

persons running restaurants, eating houses, hotels etc., shall be liable

to pay A.P. VAT Tax. Now, the question is whether the petitioner

can be termed as a dealer for sale of goods or a dealer running

restaurant, eating house, hotel etc., to come within the purview of

A.P. VAT Act.

11. Section 2(10) defines the term ‘dealer’ which means any

person who carries on the business of buying, selling, supplying or

distributing goods or delivering goods on hire purchase or on any

system of payment by instalments, or carries on or executes any

works contract involving supply or use of material directly or

otherwise, whether for cash or for deferred payment, or for

commission, remuneration or other valuable consideration. The

definition includes certain category of persons enumerated in the

explanations.

(a) Be that as it may, the qualifying phrase for a dealer is “who

carries on the business of”. Therefore, in order to be christened as a

dealer within the purview of this Act, he shall carry on the activity of

2023:APHC:2647

16

business. The word ‘business’ is also defined under Section 2(6),

which reads thus:

(a) any trade, commerce or manufacture or any adventure or

concern in the nature of trade, commerce or manufacture

whether or not such trade, commerce, manufacture, adventure

or concern is carried on or undertaken with a motive to make

gain or profit and whether or not any gain or profit accrues

there from;

(b) any transaction in connection with, or incidental or

ancillary to, such trade, commerce, manufacture, adventure or

concern; and

(c) any transaction in connection with commencement or

incidental or ancillary to the commencement or closure of such

trade, commerce, manufacture, adventure or concern;

 Explanation: - For the purpose of this clause —

 (i) the activities of raising of manmade forests or

rearing of seedlings or plants shall be deemed to be business;

 (ii) any transaction of sale or purchase of capital

goods pertaining to such trade, commerce manufacture,

adventure or concern shall be deemed to be business; (iii)

 a sale by a person whether by himself or through an

agent of agricultural or horticultural produce grown by himself

or grown on any land whether as owner or tenant in a form not

different from the one in which it was produced, save mere

cleaning, grading or sorting does not constitute business;


12. Thus, a conjunctive study of above provisions pellucidly

explains us that at the first instance, the activity of a person must be a

trade, commerce or manufacture so as to bring such activity as

“business”. If such business is carried out for buying, selling,

2023:APHC:2647

17

supplying or distribution of the goods, such person who is involved in

that business shall be regarded as “dealer” and under Section 4 of

A.P. VAT Act, such dealer shall be excisable to tax. In the instant

case, as rightly submitted by the counsel for petitioner, the

fundamental or principal activity of the petitioner’s educational

institution is not that of buying, selling, supplying or distribution of

the goods rather its function is to impart education that too on a nonprofit motive. The petitioner in its hostel supplies food to the

students but the said activity is not done in the course of business of

running restaurant, eating house or a hotel. As rightly submitted by

the learned counsel for the petitioner, section 2(10) (d) of the VAT

Act specifically refers to only a restaurant or eating house or a hotel

but the word ‘hostel’ is not specifically included therein. Therefore,

the inclusion of the petitioner’s institution in the category of dealer

for the purpose of AP VAT Act, 2005 and assessing the same to tax

U/s 21 of AP VAT Act is not correct. In Indian Institute of

Technology’s (supra 1) case the Indian Institute of Technology,

Kanpur was served with notices by the Sales Tax Officer for

assessing the institute under UP Sales Tax Act. The petitioner sent a

2023:APHC:2647

18

reply inter alia, asserting that the petitioner was not a dealer within

the meaning of the definition of that term under UP Sales Tax Act

and as such the notices were misconceived. Again there was second

round of exchange of notices. Thereafter the representative of

petitioner appeared before the Sales Tax Officer (STO) and tried to

explain that the petitioner was not a dealer. However, the STO did not

satisfy with the reply and passed an ex parte order of assessment and

initiated proceedings even for penalty. Aggrieved, the petitioner

institute filed the writ petition before High Court of Allahabad. The

petitioner’s case was that the fee charged from the visitors of the

hostel is not the actual price of the food consumed by them and the

principle of charging the fee is the same as in the case of other hostels

where students reside and that a fixed fee is charged for tea, breakfast,

lunch and dinner and the same has no relation to the actual

consumption and the charges paid by the residents have really a very

remote relation to the actual value of the food stuffs consumed by

them. Thus, according to petitioner, the transaction of supplying food

stuffs to the residents of the hostel cannot be termed as ‘sale‘ nor can

the petitioner be said to be ‘carrying on business of buying or selling

2023:APHC:2647

19

goods’ within the meaning of UP Sales Tax Act. The respondent

however contended that the petitioner charges price of foodstuffs

supplied to the visitors separately in the bills and that the customers

of the petitioner include all and sundry. The division bench of High

Court of Allahabad observed that the petitioner is under statutory

obligation to maintain a hostel such as the visitors hostel and its

activity in supplying foodstuffs to the occupiers of the hostel is an

integral part of the objects of the petitioner’s institute. It ultimately

held thus:

“20. Reverting to the facts of the instant case, it is clear that the

petitioner is essentially a residential institution where all students,

research scholars and research fellows have to reside in the halls of

residence and hostels built by the Institute and, in that connection, it

has to supply foodstuffs to the inmates of the hostels as also

incidentally to the relatives of the inmates and other persons who

come and stay in the hostel in connection with the activities of the

Institute. It is further clear from annexure H to the writ petition that

the charges for foodstuffs are paid to the petitioner on the basis of

fixed fee for tea, breakfast, lunch and dinner, which has no

relationship to the actual quality or quantity of the foodstuffs

consumed. Accordingly, it cannot be said that the petitioner's

principal activity is doing business in a commercial way of buying

and selling foodstuffs. On the other hand, it is apparent that the

principal activity of the petitioner is predominantly academic and the

2023:APHC:2647

20

supply of foodstuffs in the manner stated above is minor, subsidiary

and incidental to the principal activity and is an integral part of its

academic activity. Consequently, the petitioner cannot be dubbed as a

"dealer" within the meaning of Section 2(c) of the U. P. Sales Tax

Act. The Sales Tax Officer had accordingly no jurisdiction to initiate

proceedings for levy of sales tax on the petitioner. (Emphasis

Supplied)

21. In the result, the writ petition succeeds and is allowed, the order of

assessment for the year 1968-69 (annexure G to the writ petition) as

also the notices dated 3rd February, 1973 (annexures C-1 to C-4 to the

writ petition), and the direction contained in the letter dated 14th

March, 1973 (annexure F to the writ petition), are quashed, and

respondent No. 2 is prohibited from continuing the assessment

proceedings initiated in pursuance of the aforesaid notices and letter.

The petitioner will be entitled to its costs.”

13. Needless to emphasize that the ratio in the above decision

applies with all its fours to the present case, inasmuch as, in the

instant case also the principal function of petitioner is to impart

education with a non-commercial motive and running of the hostel is

incidental to the main activity and as such, though subsidized prices

are charged from the students for supply of the food items and

beverages, the transaction cannot be treated as ‘sale of goods’ to bring

the activity within the mischief of AP VAT Act.

2023:APHC:2647

21

14. The contention of the respondents that the writ petition is not

maintainable in view of availability of alternative remedy is

concerned, we find no much force in it. It must be reiterated that

mere availability of alternative remedy is not an embargo to entertain

the writ petition, rather, constitutional Courts observe judicial

restraint and discipline and generally desist from entertaining writ

petitions when alternative remedy is available in a given case. That

does not mean they lack jurisdiction. Even in cases where alternative

efficacious remedy is available, still the constitutional Courts can

entertain the writ jurisdiction in certain occasions. In Whirlpool

Corporation v. Registrar of Trade Marks, Mumbai2

the Hon’ble

Apex Court enumerated such occasions and held as follows:

“15. Under Article 226 of the Constitution, the High Court, having

regard to the facts of the case, has discretion to entertain or not to

entertain a writ petition. But the High Court has imposed upon itself

certain restrictions one of which is that if an effective and

efficacious remedy is available, the High Court would not normally

exercise its jurisdiction. But the alternative remedy has been

consistently held by this court not to operate as a bar in at least

three contingencies, namely, where the Writ Petition has been filed

for the enforcement of any of the Fundamental rights or where there

has been a violation of the principle of natural justice or where the


2

 AIR 1999SC22 = MANU/SC/0664/1998

2023:APHC:2647

22

order or proceedings are wholly without jurisdiction or the vires of

an Act is challenged.”

15. As can be seen, the above decision expostulates that when the

impugned order is passed by an authority without having jurisdiction,

the writ petition can be entertained in spite of availability of

alternative efficacious remedy. In the instant case the 2nd respondent

has passed the impugned assessment order though the petitioner

under law does not come under the purview of “dealer” as per the

provisions of AP VAT Act, 2005. Therefore, the impugned order can

be said to be passed wholly without jurisdiction and hence the writ

petition is maintainable.

16. In the result, the writ petition is allowed and action of the 2nd

respondent in directing the petitioner school to obtain registration as a

dealer under AP VAT Act, 2005 and the further action of respondents

in assessing the petitioner’s school to VAT under the provisions of

AP VAT Act, 2005 for the period from 01.04.2005 to 31.12.2005

vide order dated 08.03.2006 is held as illegal, arbitrary and contrary

to provisions of AP VAT Act, 2005 and accordingly the said order is

set aside and if any amount is deposited by the petitioner in respect of

2023:APHC:2647

23

the above assessment order, the same shall be refunded to the

petitioner. No costs.

As a sequel, interlocutory applications pending, if any, shall

stand closed.

_________________________

U.DURGA PRASAD RAO, J

__________________________

T. MALLIKARJUNA RAO, J

30.01.2023

krk


2023:APHC:2647

24

HON’BL SRI JUSTICE U. DURGA PRASAD RAO

AND

HON’BLE SRI JUSTICE T. MALLIKARJUNA RAO

W.P.No.7417 OF 2006

30th January, 2023

krk

2023:APHC:2647

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