9911796707
Advanced Search 
TMI Blog2022 (11) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... r a Composition Scheme under Section 4(7)(d) of the VAT Act, by filing Form VAT 250 and, accordingly, submitted returns and paid taxes under the said Scheme on the entire receipts towards works contracts, without claiming any Input Tax Credit. (iii) It is averred in the affidavit filed in support of the Writ Petition that, for the tax periods 2014-15 to 2017-18, the first Respondent, on an authorization given by Deputy Commissioner (CT), Anantapuramu District, conducted audit on the Petitioner and on further authorization from the Deputy Commissioner (CT), passed Assessment Order, dated 06.05.2019, assessing the Petitioner to pay tax at the rate of Rs.19,55,785/-. (iv) Aggrieved by the same, the Petitioner preferred an Appeal under Section 31 of the VAT Act, vide Appeal No.16/2019-20 (ATP), before the Appellate Deputy Commissioner (CT), Tirupathi. On 22.10.2020, the said Appeal was disposed of setting aside the Assessment Order passed by the first Respondent and consequently remanded the matter to the concerned Assessing Authority. Challenging the same, the present Writ Petition came to be filed mainly on two grounds; firstly the Order passed by the first Respondent was without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on remand, the very same Officer has assessed the case of the Petitioner, in terms of the Order of Remand and, as such, it cannot be said that there was any illegality. He also took us through Rule 59 of the VAT Rules, to contend that, there is no illegality in the Order. In view of the above, he would submit that the Order under challenge requires no interference. 5) In reply, Sri. G. Narendra Chetty, learned Counsel appearing for the Petitioner, would submit that, though some of the material was purchased earlier to 2015, but the same was used for construction of building and after completion of the same, it was sold by paying tax. Therefore, the finding given by the Assessing Authority that material purchased prior to Composition Scheme is liable to be taxed, is incorrect. 6) The point that arises for consideration is:- (i) Whether the first Respondent was right in passing the Assessment Order? (ii) Whether the Assessing Authority was justified in giving the same findings, which were set-aside by the Appellate Authority? 7) In order to appreciate the same, it would be useful to refer to few provisions of law. 8) Clause (a) of Section 4(7)(d) of VAT Act states that, ""eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all enter such details in Form VAT-200, filed for the month in which the sale of such property is concluded and registered. 12) It is an undisputed fact that, the dealer opted for Composition Scheme and filed Form VAT 250 on 10.06.2015, wherein, the dealer opted for payment of tax by way of composition, for the full value of the contract of Rs.4,35,00,000/-. The dealer commenced its activity of contract by purchasing the goods to a tune of Rs.94,16,538/- for the purpose of construction and development activities at his apartments and by selling the apartments to a tune of Rs.10,00,000/-. Having regard to the filing of Form VAT 250 and opted for Composition Scheme by filing VAT 250, the Petitioner would come under the purview of Section 4(7)(d) and Rule 17(4) of VAT Act. 13) The claim of the Petitioner in the Appeal before the Deputy Commissioner Tax Officer, is that, there is no scope for levy of tax on goods, but tax is liable on gross construction received or receivable on sale of apartment, as per rate of tax prescribed under Rule 17(4) of VAT Act. Having regard to the plea taken and taking into consideration the provisions of law and the goods purchased for construction being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the findings of the Appellate Deputy Commissioner? 16) Insofar as assessment by the first Respondent, namely, the Deputy Commercial Tax Officer - I, Office of the Commercial Tax Officer, Anantapuramu Circle-II, is concerned, it is to be noted that, even in the earlier round of litigation i.e., even before the matter was remanded, the very same authority has assessed the case of the Petitioner, vide Order, dated 06.05.2019. At that point of time, the Petitioner never raised any objection with regard to the jurisdiction of the said authority in passing the said Order. Even before the Appellate Authority, the jurisdiction of the Assessing Authority was not questioned. Having subjected itself to the jurisdiction of the first Respondent, it may not be proper for the Petitioner to question the jurisdiction in the second round of litigation. 17) Be that as it may, a reading of Rule 59(1) would indicate that, against any Order passed by the Appellate Authorities and Revision Authorities under Sections 31, 32, 33, 34 and 35 of the VAT Act, the Assistant Commissioner, Commercial Tax Officer or the Deputy Commercial Tax Officer, as the case may be, having territorial jurisdiction over the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute that the first Respondent is having territorial jurisdiction over the dealer. The G.O.Ms. No. 503, dated 08.05.2009, which came into effect from 01.05.2009, which is referred to in the affidavit filed in support of the Writ Petition, would show that, if the Deputy Commercial Tax Officer is having territorial jurisdiction over the dealer, he can deal with the case of the dealer irrespective of the fact whether the original order under Appeal or Revision order has been passed by him or not. Therefore, the argument of the learned Counsel for the Petitioner that, it is only the second Respondent, who has got the power to assess the case of the dealer/Petitioner, may not be correct. Apart from that, as urged by the learned Government Pleader for Commercial Taxes, no prejudice is caused to the Petitioner whether it is assessed by the second Respondent or first Respondent or by Assistant Commissioner or by Commercial Tax Officer, since an Appeal against the Order passed by any of the authorities would only lie before the appellate authority and, there is no inter-se appeal to the Officer referred to in the above G.O. 23) Having regard to the above, the argument of the learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide the impugned orders of the assessing authority and remit back the appeal to the concerned assessing authority with a direction to go through the above mentioned judgment, verify the books of accounts mainly sale considerations received by the appellant, Form 250 filed by the appellant and IT statements after affording proper opportunity to the appellant then pass orders as deemed fit as per the provisions of APVAT Act and Rules." 27) A reading of the above Order makes it clear that, the purchases made prior to declaration of VAT 250 and the sale made [apartments], the Appellate Authority found that the method adopted in levying tax is totally incorrect. The Appellate Authority categorically held that, when the Petitioner has opted for Composition Scheme and not claimed ITC, then the Assessing Authority has to levy tax under Rule 17(4) of the VAT Act. Having said so, the Appellate Authority further said that the Assessing Authority, without verifying the records properly, levied tax on purchases also, which is against the spirit of VAT Act and, accordingly, remanded the matter back. 28) On remand, the Assessing Authority confirmed the Order passed by him earlier. The operative ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
