TMI Blog2010 (8) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter. At this stage, no interference is called for. We leave the liberty to the petitioner to submit explanation with all the pleas highlighted in this writ petition. The first respondent shall then decide the issues, in the light of the law declared by the apex court. - Writ Petition No. 18725 of 2010 - - - Dated:- 27-8-2010 - RAO V.V.S. AND RAMESH RANGANATHAN , JJ. ORDER:- The order of the court was made by V.V.S. RAO J. The petitioner-company entered into two contracts, one on February 3, 1995 and the other on February 18, 2004, with M/s. Coromandal Fertilisers Limited, manufacturers of fertilizers, who also produced large quantity of gypsum slurry as a by-product. Under the first contract, the petitioner is requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction as there is no transfer of right to use the goods as contemplated under section 4(8) of the Andhra Pradesh Value Added Tax Act, 2005; (ii) that the first respondent has a pre-determined mind to mulct the petitioner with unconstitutional levy and collection; (iii) that the impugned show-cause notice is arbitrary; and (iv) that tests laid down by the Supreme Court for considering a transaction as deemed sale are absent. He placed reliance on Rashtriya Ispat Nigam Ltd. v. Commercial Tax Officer, Company Circle, Visakhapatnam [1990] 77 STC 182 (AP) and Bharat Sanchar Nigam Ltd. v. Union of India [2006] 3 VST 95 (SC); [2006] 145 STC 91 (SC); [2006] 3 SCC 1. Per contra, the Special Standing Counsel for Commercial Taxes placing relianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature. The High Court in our opinion ought not to have interfered with the show-cause notice. (emphasis Here italicised. supplied) The High Court of Madras in Medopharam v. Superintendent of Central Excise [1995] 77 ELT 524 (Mad) held as under: . . . In the writ petition, the petitioner/appellant has challenged the show-cause notice. The learned single judge has gone into the merits of the case and dismissed the writ petition. We are of the view that whenever a show-cause notice is issued under the provisions of Central Excises Salt Act, which provides for adjudicatory forum and also right of first appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed above. In Special Director v. Mohd. Ghulam Ghouse [2004] 3 SCC 440, it was held: This court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o dispose of the matter thereafter in accordance with law. In Anil Kumar Ramesh Chandra Glass Works [2006] 145 STC 656 (SC); [2005] 11 SCC 451, for the period from 1982-83 to 1984-85, the competent authority issued show-cause notice under the U.P. Trade Tax Act, 1948, to the respondents, the manufacturers of glass bangles, asking for explanation as to why they should not be held liable for payment of sales tax on account of sales made by them for the period covered by the notices. The show-cause notices were assailed in a writ petition in January 1986. During its pendency in February 1988, eligibility certificate granted to the assessee was cancelled. It was assailed before the Sales Tax Tribunal unsuccessfully. The revision petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued notice in form VAT 305A dated November 5, 2008 proposing to levy VAT on the income from material handling. A reply was promptly submitted by the petitioner. This only shows that in relation to the disputed levy, the petitioner has already submitted to the jurisdiction of the assessing authority. In such an event when a further show-cause notice is issued in continuation of the first one the impugned show-cause notice refers to the earlier show-cause notice as well it cannot be said that the first respondent suffers from inherent lack of jurisdiction. The officers appointed by the State Government, in accordance with section 3A of the VAT Act, acting within the scope of the powers conferred on them, are required to perform the fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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