TMI Blog2016 (6) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... scretion can be exercised under Article 226 to declare that the orders passed by the 3rd respondent are illegal and arbitrary. - writ petition dismissed - Decided against the petitioner. - WRIT PETITION No.20743 OF 2015 - - - Dated:- 26-11-2015 - SRI RAMESH RANGANATHAN AND SRI M. SATYANARAYANA MURTHY, JJ. FOR THE PETITIONER : LAKSHMAN FOR THE RESPONDENT : GP FOR COMMERCIAL TAX (TG) WRIT PETITION No.20743 OF 2015 ORDER : (Per Hon ble Sri Justice M. Satyanarayana Murthy) This writ petition, under Article 226 of the Constitution of India, is filed by the petitioner-assessee to issue a direction declaring that the dismissal of order dated 04.04.2015, passed by the 3rd respondent vide proceedings in CCT s Ref.No.LIII(2)/30/2015 in JC Order No.75 of 2015 as arbitrary, illegal, unjust and in violation of the procedure laid down under the Andhra Pradesh General Sales Tax Act, 1957 (for short, the APGST Act ). The petitioner is a partnership firm carrying on the business of manufacturing cement having its unit at Bibinagar mandal in Nalgonda district. In pursuance of introduction of a New Comprehensive Scheme of State Incentives Scheme, 1992 (NCSSI, 1992) vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely, the petitioner filed an Appeal before the Telangana Value Added Tax Appellate Tribunal, Hyderabad (for short, the Tribunal ) and during pendency of said Appeal before the Tribunal, against rejection of stay by the ADC, Hyderabad filed Revision before the 3rd respondent, who declined to pass an order for stay of recovery of tax assigning different grounds. Thus, the 3rd respondent passed an order dismissing the Revision declining to grant stay of recovery of tax, demanded in statutory notice. It is specifically contended that the 3rd respondent did not follow the procedure prescribed under Rule 58 of Rules framed under the APGST Rules for serving notice and orders passed by them and, therefore, failure to file a Revision within time before the ADC, Hyderabad and Revision against the order passed by the ADC, Hyderabad before the 3rd respondent and Appeal before the Tribunal is not wilful as the order was passed by the authorities under the Act keeping the petitioner totally in dark and without complying Rule 58 of the APGST Rules framed under the Act, the 3rd respondent would not have dismissed the Revision but the 3rd respondent without appreciating various contentions rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice nor filed any Appeal within the time stipulated; however, filed Appeal in Form-I under Section 19 of the APGST Act before the ADC, Hyderabad on 29.05.2001 raising several contentions, the said Appeal was rejected as the petitioner did not comply the objections even after issuing check memos dated 02.06.2001, 04.04.2003 and final notice dated 27.10.2003. The petitioner s contention from the beginning is that the notices, as required under Rule 58 of the APGST Rules, were not issued either by 4th respondent or by the ADC, Hyderabad; therefore, rejection of the Appeal and passing of best judgment assessment by the authorities concerned is illegal; the orders passed by the 4th respondent and ADC, Hyderabad are the subject matters in the Appeal pending before the Tribunal. Therefore, the legality and validity of the orders passed by the 4th respondent and ADC, Hyderabad need not be gone into by this Court while deciding the present writ petition. Rule 58 of the APGST Rules deals with service on a dealer of any notice, summons, order or proceedings under the Act or under these rules and a specific procedure for service of notices etc., is contemplated under Rule 58, which r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate authority shall, after giving the appellant a reasonable opportunity of being heard, pass orders as laid down in sub-section (3) of Section 19. Here, the only grievance of the petitioner in rejection of Appeal by the ADC, Hyderabad on the ground that the original order served on the petitioner was not annexed to the grounds of Appeal is illegal; legality of the rejection of the Appeal by the ADC, Hyderabad cannot be gone into in the present writ petition as it is only questioning the order passed by the 3rd respondent rejecting stay during pendency of the Appeal. The 3rd respondent passed the impugned order on 04.04.2015 on the ground that the petitioner did not seek stay of collection of tax before the ADC, Hyderabad, he did not reject the stay and that too the order was challenged after a long lapse of time and declined to grant stay of collection of tax during pendency of the Appeal before the Tribunal. The relevant provision dealing with stay of collection and Revision is Section 19 (2-A) and (2-B) of the APGST Act. Section 19 deals with Appeals; Section 19(2- A) deals with grant of stay of collection of tax under dispute, pending disposal of the Appeal; according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appeal or by filing a separate application as required under Section 19(2-A) of the APGST Act and, in such case, question of passing an order by the ADC for stay of collection of tax does not arise and, when no such order was passed under Section 19(2-A), no Revision lies under 19(2-B); therefore, the order passed by the 3rd respondent rejecting stay of collection of tax during pendency of the Appeal before the Tribunal is in accordance with law and we find no reason warranting interference with the order passed by the 3rd respondent under challenge. As seen from the conduct of the petitioner, from the beginning, the petitioner though submitted monthly turnover returns to the 4th respondent, he did not file sales-tax returns and not responded to the notices issued by the 4th respondent calling upon the petitioner to produce books of accounts for audit to fix the tax liability; thereupon, the 4th respondent having no other alternative, passed a best judgment assessment, marked a copy of the order to the petitioner. The petitioner slept for a considerable period but only on receiving demand notice from the 4th respondent, obtained a certified copy of the assessment order, filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that any service of notice, summons, order or proceedings under the Act or under the Rules may be effected by giving or tendering it to such dealer or his manager or agent; or when such dealer or his manager or agent is not found by leaving it at his last known place of business or residence or by giving or tendering it to adult member of his family; or if the address of such dealer is known to the assessing authority, by sending it to him by registered post and if it is returned un-served, it shall be put on notice board of the office of the assessing authority or the notice board in the office of the local Chamber of Commerce or Traders Association, and it shall be deemed that the said notice or summons or proceedings are served on the dealer and action shall be taken in pursuance thereof accordingly. Finally, it is concluded therein that notice sent by ordinary post is not contemplated under Rule 58 and it is not appropriate service. No doubt service of notice under Rule 58 is mandatory but when the Appeal is pending against the order passed by the Appellate Deputy Commissioner before the Tribunal, the validity of the orders passed by the 4th respondent and Appellate Deputy C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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