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M/s. Vijaya Mining & Infra Corporation Private Limited Versus The Commercial Tax Officer-I, The Assistant Commissioner (CT) -III, Enforcement Wing, The Appellate Deputy Commissioner (CT) , Kurnool Division, The Commissioner of Commercial Taxes, Government of Andhra Pradesh And The State of Andhra Pradesh, Rep. by its Secretary, Revenue (CT) , Hyderabad

2018 (2) TMI 772 - TELANGANA AND ANDHRA PRADESH HIGH COURT

Validity of assessment order - APVAT act, 2005 - appeal rejected on the ground that the pre-deposit condition was not satisfied - main grievance of the petitioner is two fold, viz., (a) that the original order of assessment was without jurisdiction, as it included the turnover relating to works executed in other States; and (b) that in any case, the decision of this Court in Ankamma Trading Company [2011 (2) TMI 1254 - Andhra Pradesh High Court] has been suspended by the Supreme Court. - Hel .....

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a binding precedent and that it is always open to this Court to be allowed to be persuaded to come to a different conclusion. - The contention of petitioner cannot be agreed. 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 th .....

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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 of delay and laches. In other words, the assessee falling under this category should satisfy this Court not only on the parameters of violation of natural justice or lack of jurisdiction but also on the parameters of delay and laches. Wherever it is found by this Court that an ass .....

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his contention the petitioner ought to have produced pending agreement copies. The other contention that the works executed by the petitioner for AMR Constructions and Sushee Infratech Private Limited are in the nature of civil contracts for removal of overburden and that therefore the receipts cannot be considered as hire charges, is an argument that does not go to the root of the issue of jurisdiction. - Petition dismissed. - W. P. No. 43024 of 2015 - Dated:- 24-1-2018 - MR. V. RAMASUBRAMA .....

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leader for Commercial Taxes, A.P. 3. The petitioner is carrying on the business of execution of civil works 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 ₹ 56,03,70,515/- and exempted sales to the tune of ₹ 294,03,22,541/- in the returns filed in Form-200. 5. Pursuant to an au .....

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t of the works executed for two companies by name AMR Constructions and Sushee Infratech Private Limited. The balance amount of ₹ 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 from raising issues on merits, the petitioner also contended that the works pertaining to other States are not liable to tax in Andhra Pradesh and requested the 2nd respondent t .....

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statutory appeal on 04.04.2015 before the 3rd respondent, as against the order of assessment dated 04.02.2015. But the appeal was not accompanied by a deposit of 12.5% of the disputed tax. The petitioner claims that they were unable to make the deposit due to financial crisis. Therefore, the appeal was rejected by an order dated 07.10.2015, on the basis of a judgment of this Court in Ankamma Trading Company v. The Appellate Deputy Commissioner (CT), Guntur . 10. Thereafter, the petitioner has co .....

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her States; and (b) that in any case, the decision of this Court in Ankamma Trading Company has been suspended by the Supreme Court. 12. The 1st respondent has filed a counter affidavit contending inter alia that pursuant to the authorization issued by the Joint Commissioner, the 2nd respondent conducted an audit on 02.01.2014 and issued a show cause notice on 13.11.2014; that the petitioner filed its objections on 16.01.2015 and participated in the personal hearing held on 19.01.2015; that ther .....

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ion 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 befor .....

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onable time beyond sixty days? 2. Is the defect in payment of the tax stipulated in the second proviso, curable? 3. Is the time limit for the payment of admitted tax and 12.5% of the disputed tax is mandatory or directory? 15. After analyzing the statutory provisions and the entire case law on the point, the Division Bench came to the conclusion in Ankamma Trading Company that even the payment of admitted tax and 12.5% of the disputed tax beyond the period of 60 days, from the date of receipt of .....

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strial Explosives Limited v. Government of A.P., (W.P.No.13617 of 2014 dated 31.10.2014), a claim that wherever appeals are rejected for non-compliance with statutory prescriptions and those orders are challenged by way of writ petitions, it was open to this Court to grant stay of recovery. But this Court held that the decision in Ankamma Trading Company is binding upon a Coordinate Bench. 18. The decision in Ideal Industrial Explosives dated 31.10.2014 was carried on appeal in S.L.P.(Civil).No. .....

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he assessment order dated 07.10.2013 vide TIN 28190122893/ 2012-13 issued by the Assistant Commissioner (CT) IX, Enforcement Wing, Hyderabad; and iv) Grant such relief or reliefs as are deemed fit and proper in the interest of justice. 19. On 16.02.2015 the Supreme Court granted leave and also granted 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 Appe .....

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ciated 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 .....

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r August, 2014, the element of discretion stands removed from some of the statutes. The amount quantified as pre-deposit condition, is normally determined by the law makers, to ensure that a balance is struck between the interests of the revenue and the rights of the assessee. Therefore, a prescription regarding pre-deposit condition cannot be made a dead letter. Hence we see no reason to take a different view than the one taken in Ankamma Trading Company, at least until the decision in Ankamma .....

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d for failure to comply with the statutory prescription? 24. Generally an order of the original authority merges with the order passed on an appeal. Once the appeal is disposed of, there is no original order available in the eye of law, to enable the assessee to challenge the original order. 25. But in cases where a statutory appeal is rejected for non- compliance with the statutory prescription or on account of delay in filing the appeal beyond the condonable period, merger does not take place. .....

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s 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 extre .....

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iance with the statutory prescription, this Court will also see whether the assessee is guilty of delay and laches. In other words, the assessee falling under this category should satisfy this Court not only on the parameters of violation of natural justice or lack of jurisdiction but also on the parameters of delay and laches. Wherever it is found by this Court that an assessee has come up with a writ petition at the earliest point of time, without being guilty of delay and laches, this Court c .....

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o produce proof was not accepted and that therefore there was a violation of principles of natural justice. 31. In the third last paragraph of their objections dated 16.01.2015 to the show cause notice dated 13.11.2014 the petitioner stated the following: The connected records are with site in-charge officials, and we could not be able to get the same in spite of efforts taken by us. We therefore, request the Assessing Authority, kindly give us one more opportunity up to the end of this month fo .....

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l normally go by broad parameters. If a show cause notice has been served, if sufficient opportunity has been granted to file objections and if a personal hearing had been granted, then the Court cannot go beyond. This is especially so in cases where the assessee chooses to challenge the original orders of assessment, without availing the alternative remedy of appeal. 34. In the case on hand, the show cause notice was issued on 13.11.2014. The date on which the show cause notice was received by .....

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