TMI Blog2018 (2) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... from admitting the appeal and that the prescription was mandatory and not directory - 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. 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 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 stands suspended. Whether it will be open to an assessee to challenge the original order of assessment, after getting their statutory appeal rejected for failure to comply with the statutory prescription? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hases 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 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 ₹ 9,58,20,937/-. Out of the proposed tax, the 2nd Respondent treated an amount of ₹ 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 ₹ 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 to grant time to produce relevant agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out 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 admitted tax and 12.5% of the disputed tax and production of its proof, within a reasonable time beyond sixty days? 2. Is the defect in payment of the tax stipulated in the second proviso, curable? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ag 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 stands suspended. 22. Let us assume for a minute that we are today entitled to independently deal with the issue. Even then we find no reason to take a different view than t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The petitioner sought time of one month. Though time was granted, they failed to submit pending agreement copies. It was only thereafter that the show cause notice dated 13.11.2014 was issued. 35. After the petitioner submitted their objections on 16.01.2015, a personal hearing was held on 19.01.2015. It is only thereafter that the impugned order of assessment dated 04.02.2015 was passed. From the date of service of VAT-310 on 10.10.2014, the petitioner had about three months time to collect the records. Therefore, we do not agree that the failure to grant time to produce the records tantamounted to violation of the principles of natural justice. 36. The second objection to the original order of assessment is that in respect of the works carried out outside the State, the 2nd respondent had no jurisdiction. But in support of this 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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