9911796707
TMI Blog2021 (6) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... e succinctly is thus: (a) Petitioner is a registered dealer on the rolls of the 1st respondent doing business of purchase and sale of machinery spares used in manufacturing units of mango pulp industries. The same is liable to tax @ 5% falling under Entry No.102(2) of the IV Schedule to the A.P. VAT Act, 2005. Accordingly, the petitioner paid tax @ 5% per month and submitted returns. (b) While so, the Deputy Commercial Tax Officer-I, Chittoor-I Circle passed Assessment Order for the tax period from April, 2013 to January, 2016 vide A.O. No.29664, dated 30.07.2016 imposing tax on the said goods @ 14.5% by treating the same as a unclassified goods. He also passed penalty order vide A.O.No.48458, dated 31.12.2016 imposing penalty equal to tax even though no penalty is warranted. (c) Aggrieved by the Assessment and Penalty Orders, the petitioner filed statutory appeals Nos. Nos.83/2017-18 (CTR) and 84/2017-18 (CTR) before Appellate Deputy Commissioner (CT), Tirupathi and the said authority vide its order dated 08.11.2017 while setting aside the assessment and penalty orders, remanded the matters to the 1st respondent. The Appellate Deputy Commissioner has virtually allowed the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and impose tax @ 5% only and he had no jurisdiction to once again impose tax @ 14.5% treating the subject goods as unclassified goods. Hence, the two writ petitions. 3. In writ petition No.946 of 2021 the 1st respondent filed counter inter alia contending thus: (a) Firstly, it is contended that the writ petition is not maintainable in as much as, an efficacious and alternative remedy of appeal is available to him. Nextly, it is contended that the allegations in the writ petition that the 1st respondent violated the principles of natural justice by passing the impugned assessment order without waiting till expiry of the notice period is palpably false. The show cause notice dated 09.11.2020 was served on the petitioner's address at his principal place of business on 20.11.2020 through RPAD vide postal receipt No.RN434230352IN, Chittoor post office. It is submitted that in the cause title of the writ petition, the petitioner has shown his principal place of business as his address. The dealer failed to avail the opportunity of personal hearing fixed on 27.11.2020, despite having received the show cause notice on 20.11.2020. Hence, final orders were passed on 28.11.2020 confirming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate authority, the 1st respondent issued notice dated 12.12.2017 calling for the information, in response to which, the petitioner submitted a letter dated 27.12.2017 along with sales invoices, purchase invoices, balance sheet and profit and loss accounts for the relevant period. However, later on, the petitioner by taking time, has not filed information required for finalization of the case in pursuance to the direction of Appellate Deputy Commissioner. Hence, a show cause notice dated 09.11.2020 was issued to him stating that he has not filed sales invoices and other information to dispose of the case. Since the petitioner failed to file reply and also appear for personal hearing, the 1st respondent passed final orders on 28.11.2020. He thus prayed to dismiss the writ petitions. 4. Heard Sri G. Narendra Chetty, learned counsel for the petitioner and Government Pleader for Commercial Taxes representing respondents. 5. The prime argument of learned counsel for the petitioner is that the Appellate Deputy Commissioner, Tirupathi has virtually allowed his appeal challenging the initial Assessment Order and held that the disputed goods sold by the writ petitioner are used exclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27.11.2020 at 11:30 A.M. It was further clearly mentioned that the petitioner has not filed relevant information i.e., their sale details as to whom they have effected the sales to know the consignee's name and also their nature of industry/commodity and in that view, the 1st respondent has no other option except to propose tax @ 14.5% treating that the petitioner has effected sale of machinery, spares and brushes covered by HSN Code 9603.50.00 which is not enumerated in any of the schedule-I to IV and thereby falls under residuary schedule-V of A.P VAT Act and liable to tax @ 14.5%. He further argued that while so narrating, the petitioner was requested to file his objections along with proof of documentary evidence in support of their contention by 27.11.2020. He vehemently argued that in spite of receiving the notice on 20.11.2020 and noting the contents of the show cause notice, the petitioner did not evince any interest to file his objections and relevant documents or at least to appear and seek for further time if required. In that background, in unavoidable circumstances, the 1st respondent passed the impugned consequential Assessment Order and thereafter the penalty order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ightly argued by the learned counsel for the petitioner, it is clear from the appellate order that the Appellate Deputy Commissioner has fixed the rate of tax at 5% and remanded the matter only to verify the records to be produced by the appellant and to come to a conclusion with regard to actual turnover. 11. Now, coming to the post remand scenario, admittedly the 1st respondent issued notice dated 12.12.2017 calling the petitioner to produce relevant documents/information in support of their contentions within seven days from the date of receipt of the said notice. Having received the notice on 15.12.2017, the petitioner filed some record relating to purchases and trading account for the years 2013-14, 2014-15 and 2015-16 vide covering letter dated 27.12.2017 and has not filed further information. (a) Then the bone of the contention is with regard to the issue of show cause notice dated 09.11.2020. According to the 1st respondent, he issued show cause notice dated 09.11.2020 to the petitioner by RPAD both to the address of principal place of business as well as to his residence. So far as the notice to the principal place of business is concerned, according to the 1st r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
