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TMI Blog2022 (8) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... cle, Visakhapatnam, Andhra Pradesh, who had passed the order dated 04.02.2017. On the other hand, fourth respondent is the Appellate Deputy Commissioner (CT), Vijayawada, Andhra Pradesh who had passed the order dated 31.05.2019 dismissing the appeal of the petitioner and upholding the order dated 04.02.2017 passed by the second respondent. 4. Petitioner in this proceeding is ITC Limited, Indian Tobacco Division, Visakhapatnam. It is a company registered under the Companies Act, 2013 having its registered office at Kolkata and divisions in different States across the country including at Visakhapatnam in the State of Andhra Pradesh and at Secunderabad, Telangana State. 5. Andhra Pradesh Tax on Luxuries Act, 1987 (referred to hereinafter as 'the Luxuries Tax Act') was enacted for the purpose of levying tax on services provided in the hotels. Subsequently, by way of amendment Section 3A was inserted in the Luxuries Tax Act with effect from 01.08.1996 bringing tobacco and tobacco products within the tax net of the Luxuries Tax Act with effect from 01.08.1996. 6. It is stated that petitioner is engaged in the business of marketing cigarettes. It has branches at Visakhapatnam in the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleging that petitioner had continued to collect luxury tax after obtaining interim order dated 01.04.1999. Though this was denied by the petitioner, without taking any decision thereon, second respondent filed Contempt Petition (C) No.40 of 2006 against the petitioner before the Supreme Court alleging that petitioner had continued to collect luxury tax from its customers after obtaining interim order on 01.04.1999 but did not pay the same to the State Government in violation of the judgment and order dated 20.01.2005. Petitioner contested the contempt petition. Supreme Court appointed, by consent, M/s. Anandam and Company, Chartered Accountants, as auditors to audit the accounts of the petitioner for the purpose of verifying as to whether petitioner had collected any amount towards luxury tax from its customers after 01.04.1999 till 20.01.2005. Auditor submitted report to Supreme Court on 25.03.2013 opining that petitioner had not collected any luxury tax from its customers. After considering the report of the Chartered Accountants, Supreme Court disposed of the contempt petition on 06.02.2014 observing that there was no reason for any proceeding to be initiated, much-less conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter dated 23.12.2016 no communication was received by the petitioner. In the meanwhile, second respondent proceeded and passed the impugned order dated 04.02.2017 affirming the demand raised in the show cause notice dated 07.08.2015. 15. According to the petitioner, the amount demanded by the second respondent is covered in the show cause notice dated 08.12.2016 issued by the third respondent. 16. It is alleged that the show cause notice and the impugned order have been issued and passed after more than eleven years from the date the Luxuries Tax Act was struck down by Supreme Court. 17. Assailing the legality and validity of the order dated 04.02.2017 passed by the second respondent, the present writ petition came to be filed. 18. Petitioner also filed an interlocutory application to stay the demand. By the order dated 18.04.2017, a Division Bench of this Court took the view that since the second respondent had passed an order, the third respondent should refrain from passing any order until two issues were resolved, namely, (1) the very liability of the petitioner and (ii) who is entitled to collect. Accordingly the following order came to be passed: (i) There will be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 20.1. Petitioner had challenged the vires of Section 3A of the Luxuries Tax Act in so far levy of luxury tax on cigarettes was concerned in W.P.No.16909 of 1996. The said writ petition was heard along with other writ petitions raising similar challenge. By the judgment and order dated 12.11.1998 this Court dismissed all the writ petitions upholding constitutional validity of Section 3A of the Luxuries Tax Act. 20.2. Against the aforesaid judgment and order, petitioner and others approached the Supreme Court by filing Special Leave Petitions which were thereafter converted to civil appeals. It is stated that on 01.04.1999 Supreme Court while issuing notice had passed an interim order to the effect that petitioner and others should register themselves before the authorities under the Luxuries Tax Act and on disposal of the civil appeals if it was found that petitioner and others had collected luxury tax after obtaining interim order from the Supreme Court, they should pay the said amount to the State Government. 20.3. Petitioner and the Hyderabad unit filed monthly returns before the assessing authorities at Visakhapatnam and at Hyderabad for the assessment years 1999-2000 to 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d respondent was directed to pass appropriate order(s) in accordance with law. However, third respondent had already passed final orders on 24.01.2017 because the dismissal order dated 23.01.2017 was received only on 23.02.2017. Petitioner again filed a writ petition i.e., W.P.No.2905 of 2017 wherein this Court vide order dated 30.01.2017 set aside the order dated 24.01.2017 directing the third respondent to follow the directions contained in the order dated 23.01.2017 in W.P.No.210 of 2017. 20.8. While the matter stood thus, second respondent pursuant to his notice dated 07.08.2015 passed final orders on 04.02.2017 for recovery of Rs.62.80 crores from the petitioner. This has been impugned in the present proceedings, wherein interim order was passed on 18.04.2017 as already extracted above. 20.9. Third respondent has contended that interim order dated 18.04.2017 is contrary to the order dated 23.01.2017 passed in W.P.No.210 of 2017 and reiterated vide order dated 30.01.2017 in W.P.No.2905 of 2017. It is stated that it is the third respondent who is the assessing officer of the petitioner and not the second respondent who ought not to have passed the order dated 04.02.2017. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the due luxury tax in accordance with assessments made on the basis of the returns so filed. 26. By a common judgment and order dated 20.01.2005 Supreme Court declared Section 3A of the Luxuries Tax Act levying luxury tax on tobacco as unconstitutional. However Supreme Court clarified that if the appellants had collected any amount towards luxury tax from the consumers/customers after the interim order was passed by the Supreme Court on 01.04.1999, they would have to pay the said amounts to the respective State Governments. 27. Second respondent filed contempt petition against the petitioner before the Supreme Court alleging that petitioner had continued to collect luxury tax from its customers after the interim order was passed on 01.04.1999, but that was not paid to the State Government, which was in violation of the judgment and order dated 20.01.2005. In the course of the contempt proceeding, Supreme Court appointed chartered accountants to audit the accounts of the petitioner to verify as to whether petitioner had collected any amount towards luxury tax from its customers after 01.04.1999 till 20.01.2005 when the judgment was delivered declaring Section 3A of the Luxuries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles of natural justice. If the petitioner and others felt aggrieved by the orders that may be passed by the taxing authorities, they were given liberty to question the same before the appropriate forum. 29. When the third respondent issued a revised show cause notice dated 08.12.2016 the same came to be challenged by the petitioner before this Court in W.P.No.210 of 2017. This Court by the order dated 23.01.2017 dismissed the writ petition. It was held as follows: 18. It appears from the material papers filed before us that the revised show cause notice issued by the 2nd respondent in this writ petition covers two units, one located within the jurisdiction of the CTO, Sarojini Devi Road Circle, Hyderabad, demanding a tax in an amount of Rs.251,59,22,641/- and another relating to the 2nd unit within the jurisdiction of the CTO, Kurupam Market Circle, Visakhapatnam, making a demand to the tune of Rs.62,80,29,344/-. It also remains a matter of record that the CTO, Kurupam Road Circle, who is the 4th respondent herein, has actually issued a separate notice dated 07.08.2015, demanding luxury tax to the tune of Rs.62,80,29,344/-, in relation to the unit at Visakhapatnam. 19. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he interim order of the Supreme Court dated 01.04.1999. Therefore, petitioner was directed to pay the said amount to the second respondent within 30 days failing which recovery proceedings would be initiated. 32. This Court passed an interim order dated 18.04.2017 directing the petitioner to avail the remedy of statutory appeal under Section 11(1) of the Luxuries Tax Act against the order dated 04.02.2017 without prejudice to the contentions of the petitioner raised in the writ petition. Further the third respondent has been restrained from passing any order. 33. On due consideration we find that the above interim order of this Court is contrary to the order dated 23.01.2017 passed by this Court in W.P.No.210 of 2017 whereby challenge to the show cause notice issued by the third respondent was dismissed. This Court had made it clear that it would be open to the taxing authorities to proceed in accordance with law and in terms of the order of Supreme Court. 34. This now brings us to the question framed supra. In the writ petition the only challenge made is to the order dated 04.02.2017 passed by the second respondent i.e., Commercial Tax Officer, Visakhapatnam. Admittedly the sai ..... 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