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2018 (2) TMI 772

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....ks contracts, both within and outside the State of Andhra Pradesh. The petitioner is registered as a dealer in the office of the 1st respondent. 4. The petitioner filed monthly returns during the year 2012-13 and had reported exempted purchases to the tune of Rs. 56,03,70,515/- and exempted sales to the tune of Rs. 294,03,22,541/- in the returns filed in Form-200. 5. Pursuant to an audit conducted by the 2nd respondent and on the strength of the authorization granted by the Joint Commissioner, Enforcement, a notice dated 13.11.2014 was issued in Form VAT-305A proposing to assess the petitioner and levy tax to the tune of Rs. 9,58,20,937/-. Out of the proposed tax, the 2nd Respondent treated an amount of Rs. 5,12,88,948/- as liability under Section 4(8), treating the works contract receipts, as receipts towards hire charges for transfer of right to use goods in respect of the works executed for two companies by name AMR Constructions and Sushee Infratech Private Limited. The balance amount of Rs. 4,45,31,989/- was treated as liability under Section 4(7) not covered by documentary evidence. 6. In response to the notice, the petitioner filed detailed objections on 16.01.2015. Apart....

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....after giving lot of time for the petitioner to make pre-deposit; that the law is settled by this Court in the decision in Ankamma Trading Company to the effect that bar for entertaining an appeal without proof of payment of 12.5% of the deposited tax, is mandatory; that the decision in Ankamma Trading Company was also reiterated in Vatti Sundari v. State of A.P. (W.P.Nos.35523 & 35540 of 2016, dated 26.10.2016); and that even on merits, the impugned orders cannot be assailed. 13. We have carefully considered the rival submissions. 14. Since the controversy raised in this writ petition revolves around the decision of a Bench of this Court in Ankamma Trading Company, it is necessary to have a look at it first. In Ankamma Trading company, what was under challenge before the Bench of this Court was the orders passed by the Appellate Deputy Commissioners, rejecting the appeals for non-compliance with the statutory requirement of deposit of 12.5% of the disputed tax. The questions that the Bench of this Court framed for its consideration included among others, the following: 1. Does the second proviso to Section 19(1) and Section 31 of the APGST and APVAT Acts permit payment of admit....

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....ad interim relief as prayed for in the Special Leave Petition. The order passed by the Supreme Court on 16.02.2015 in S.L.P.(Civil).No.4675 of 2015 is as follows: Leave granted. Tag with Civil Appeal No.7574 of 2014. Ad-interim relief, as prayed for in the Special Leave Petition, is granted. 20. Therefore, it is contended by the learned counsel for the petitioner that as on date, the decision in Ankamma Trading Company cannot be taken to be a binding precedent and that it is always open to this Court to be allowed to be persuaded to come to a different conclusion. 21. But we are unable to agree. On first principles, there cannot normally be an interim suspension of a principle of law enunciated in a decision. At the most, the interim relief granted by the Supreme Court in the Special Leave Petition filed by the Ideal Industrial Explosives Limited, can be taken to be an interim suspension of the consequences that flowed out of the judgment of this Court. By way of an interim order, the ratio decidendi of a judgment cannot be kept in suspended animation or in a state of limbo. Therefore, we do not agree with the contention that the ratio of the decision in Ankamma Trading Company s....

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....ejected, the orders of rejection do not become the orders passed on the appeal and hence no merger takes place. 26. Therefore, in cases where a statutory appeal is rejected for failure to comply with a statutory prescription or on account of the delay in filing the appeal beyond the condonable period, an assessee may be entitled to challenge the original order of assessment. 27. But in cases where the assessee chooses to challenge the original order of assessment by way of a writ petition under Article 226, after his attempts to file a statutory appeal got aborted, this Court would exercise extreme caution in entertaining the same. The power of the Court to entertain a writ petition under Article 226, in cases where the asessee seeks to bypass the alternative remedy of appeal, is circumscribed only by two conditions, viz., (a) that there is a gross violation of the principles of natural justice; and/or (b) that the order of assessment was without jurisdiction. 28. In cases where an assessee chooses to challenge the original order of assessment, after his appeal is rejected for non-compliance with the statutory prescription, this Court will also see whether the assessee is guilty....