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2017 (4) TMI 1394 - HC - VAT and Sales TaxMaintainability of petition - availability of effective statutory alternative remedy - case of petitioner is that the order impugned in the writ petition does not fall either under Section 7 or under Section 8 or under Section 9, so as to enable the petitioner to file an appeal under Section 11 (1) of the Act - Held that:- The impugned order, if not an assessment, would at least fall under the category of collection of tax within the scope of Section 7, making it amenable to the jurisdiction of an appellate authority under Section 11 (1) of the Act. Recovery of tax allegedly collected by the petitioner from its customers - unjust enrichment - Held that:- If a dealer or assessee, not liable to pay tax, collects tax from his customers under a wrong impression, he is bound, either to refund it to the customers or to remit it to the Government. Otherwise the collection of tax by the assessee or dealer from his own customer would be without the authority of law. The liberty granted by the Supreme Court should be seen in the context of the principle of unjust enrichment. Therefore, the order impugned in the writ petition should be deemed to be one passed under Section 7. Hence, the remedy under Section 11 (1) is certainly available. Inherent lack of jurisdiction - Bifurcation of State of Andhra Pradesh - Held that:- Section 104 of the A.P. Reorganisation Act is nothing but a provision similar to the provisions of the Companies Act, 1956, dealing with schemes of amalgamation, rearrangement and merger etc. Just as a new entity after amalgamation succeeds to the rights and liabilities of the previous entity, the successor State is made by Section 104 of the Reorganisation Act to get substituted as a party to the proceedings - it cannot be contended that after the bifurcation, the Assessing Officer of the State of Telangana would not have jurisdiction to proceed in respect of something initiated by an officer of the combined State of Andhra Pradesh. Time Limitation - case of petitioner is that the period in issue is from 01-08-1999 to 19-01-2015 and that a demand in respect of the said period cannot be created for the first time in the year 2017, after a lapse of about 12 years - Held that:- The starting point for the period of limitation will only be 06-02-2014, the date of the order of the Supreme Court, unless otherwise the Hon’ble Supreme Court now takes a different view. We are unable to throw the writ petition out on the ground of availability of alternative remedy, since the issues raised in the writ petition lie somewhere in the twilight zone - while keeping the writ petition pending, the petitioner could be directed to avail the remedy of a statutory appeal under Section 11 (1) of the Act. After all the petitioner may be obliged only to make a pre-deposit of 2% of the tax, under Section 11 (2) to maintain an appeal - Petition disposed off.
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