TMI Blog2017 (4) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... the context of the principle of unjust enrichment. Therefore, the order impugned in the writ petition should be deemed to be one passed under Section 7. Hence, the remedy under Section 11 (1) is certainly available. Inherent lack of jurisdiction - Bifurcation of State of Andhra Pradesh - Held that:- Section 104 of the A.P. Reorganisation Act is nothing but a provision similar to the provisions of the Companies Act, 1956, dealing with schemes of amalgamation, rearrangement and merger etc. Just as a new entity after amalgamation succeeds to the rights and liabilities of the previous entity, the successor State is made by Section 104 of the Reorganisation Act to get substituted as a party to the proceedings - it cannot be contended that after the bifurcation, the Assessing Officer of the State of Telangana would not have jurisdiction to proceed in respect of something initiated by an officer of the combined State of Andhra Pradesh. Time Limitation - case of petitioner is that the period in issue is from 01-08-1999 to 19-01-2015 and that a demand in respect of the said period cannot be created for the first time in the year 2017, after a lapse of about 12 years - Held that:- The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Amendment Act, Section 6 (1A) was inserted, providing for levy and collection of tax on the turnover of receipts of a tobacconist, relating to the supply of luxuries. Section 4-A was inserted mandating registration of every tobacconist. 5. Several writ petitions were filed on the file of this Court, challenging the Amendment Act. The petitioner herein also filed a writ petition. 6. But a Bench of this Court dismissed all the writ petitions and upheld the validity of the Amendment Act. 7. Aggrieved by the judgment of this Court, Special Leave Petitions were filed on the file of the Supreme Court. At the time of ordering notice in the SLPs, the Supreme Court issued interim order directing the petitioners therein to continue to file returns. However, the authorities were directed not to take any action for recovery of the amounts during the pendency of the SLPs. Accordingly, the petitioner filed returns before the competent authority for the period from April, 1999 onwards. 8. However, by a decision dated 20-01-2005 reported in Godfrey Philips (I) Ltd., v. State of U.P. (2005 (2) SCC 515), a Constitution Bench of the Supreme Court struck down the levy of luxury ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accounts, for each of the three companies to undertake the task set out herein: (I) M/s. ITC Ltd., - M/s. Anandam and Co., (II) M/s. G.O.I. Ltd., - Chartered Accountants Sardar Patel Road, Secunderabad. (III) M/s. VST Ind. Ltd., - M/s. Laxminiwas Neeth Co., Chartered Accountants, Basheer Bagh, Hyderabad. 5.The aforesaid Chartered Accountants will complete the verification from the relevant records and submit their report before this Court within six months from the date of communication of this order. The report should clearly state (i) Whether any sum was collected by the respective Companies towards Luxury Tax from their Customers/Consumers, on and after 01.04.1999 until 20.01.2005, i.e. during the operation of the aforesaid stay order dated 01.04.1999. (ii) If the answer to question (i) is in the affirmative; then a. The amount so collected, and b. The period during which it was so collected . 11. It appears that after verification of the records, the Firm of Chartered Accountants filed a report before the Supreme Court. Thereafter the Contempt Petition was taken up for disposal on 06-02-2014. After noticing that the report of the Charte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, the said amount, along with accrued interest, be disbursed to the Auditors/Chartered Accountants within a month s time from today by preparing appropriate Demand Drafts. 12. Pursuant to the said order, the Commercial Tax Officer, Khairtabad Circle issued a show cause notice dated 03-09-2014. The petitioner submitted an interim reply on 17-09-2014. The Commercial Tax Officer granted personal hearing in December, 2016 and February, 2017 and thereafter passed an order dated 06-02-2017 confirming the demand made in the show cause notice and calling upon the petitioner to pay the amount as demanded. It is against the said order of the Commercial Tax Officer, Khairtabad Circle, Hyderabad that the petitioner has come up with the above writ petition. 13. The petitioner challenges the impugned order primarily on the following grounds: (i) that the respondents being the functionaries under the State of Telangana would have no jurisdiction to act upon the proceedings initiated and concluded before the bifurcation, by the erstwhile State of Andhra Pradesh; (ii) that by virtue of Section 50 of the A.P. Reorganisation Act 2014, it cannot be construed even remotely that the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel is that the Commercial Tax Officer, by his order, cannot create a remedy of appeal, as a remedy of appeal is to be conferred by statute. 17. But the above contention loses sight of two important aspects. The first is that Section 7 of the Act not only speaks on assessment but also speaks of collection of tax, as the caption to Section 7 indicates. Section 7 (4) of the Act, provides a mechanism for the collection of tax. Therefore, the impugned order, if not an assessment, would at least fall under the category of collection of tax within the scope of Section 7, making it amenable to the jurisdiction of an appellate authority under Section 11 (1) of the Act. 18. The second aspect is that what is sought to be done by the respondents is only to recover the tax allegedly collected by the petitioner from its customers. If a dealer or assessee, not liable to pay tax, collects tax from his customers under a wrong impression, he is bound, either to refund it to the customers or to remit it to the Government. Otherwise the collection of tax by the assessee or dealer from his own customer would be without the authority of law. The liberty granted by the Supreme Court should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction of this court, whenever the Assessing officer suffered from inherent lack of jurisdiction to pass the order off assessment. The issue of inherent lack of jurisdiction is raised on account of the fact that the State was bifurcated under the Andhra Pradesh Reorganisation Act, 2014, which came into effect on 02-06-2014. When the original challenge to the provisions of Sections 3-A and 4-A of the A.P. Tax on Luxuries Act, 1987 was made, the State was a combined State. Even at the time when the Constitution Bench of the Supreme Court held the provisions of the Act to be unconstitutional, on 2001-2005, the State was a combined State. This is why the contempt petitions were filed only by the concerned Assessing Officers of the combined State of A.P. in the year 2006. Even by the time when the contempt petitions were disposed of by the Supreme Court by order dated 06-02-2014, the State was united. 24. After about 4 months of the disposal of the contempt petitions by the Supreme Court, the Reorganisation Act came into effect. Section 50 of the A.P. Reorganisation Act vested the right to recover arrears of tax, upon the successor State in whose territories, the place of asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rganisation Act is nothing but a provision similar to the provisions of the Companies Act, 1956, dealing with schemes of amalgamation, rearrangement and merger etc. Just as a new entity after amalgamation succeeds to the rights and liabilities of the previous entity, the successor State is made by Section 104 of the Reorganisation Act to get substituted as a party to the proceedings. In simple terms what happens under Section 104 is similar to an amendment of cause title or an amendment of a decree. Therefore, it cannot be contended that after the bifurcation, the Assessing Officer of the State of Telangana would not have jurisdiction to proceed in respect of something initiated by an officer of the combined State of Andhra Pradesh. Limitation: 30. It is next contended by the learned senior counsel for the petitioner that the period in issue is from 01-08-1999 to 19-01-2015 and that a demand in respect of the said period cannot be created for the first time in the year 2017, after a lapse of about 12 years. The claim according to the learned senior counsel is barred by time. 31. This contention is stated only to be rejected. The order of the Supreme Court granting lib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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