TMI Blog2022 (12) TMI 1328X X X X Extracts X X X X X X X X Extracts X X X X ..... rded by the authorities, officers or persons subordinate to them. The powers under Section 32(2) are to be exercised by the subordinates to the Commissioner. The exercise of powers under Section 32(2) are no other than the revisional powers akin to the powers conferred on the Commissioner. There is no denial of the fact that the authorities under the VAT Act are vested with the powers to make assessment etc. Whether the VAT dealer transferred the right to use the vehicles of him to the oil company or not is a question of fact and if the petitioner has suffered with any adverse findings in the impugned order, he ought to have challenged these factual aspects by filing an Appeal before the appellate authority but not by way of this Writ Petition under Article 226 of Constitution of India. Apart from that, the first respondent in the impugned order opined that the self serving certificate issued by the Oil Company, as regards collection of service tax cannot be taken as a valid document, when the same is disputed by the respondents. Hence, the petitioner cannot rely upon the above to support his contention. In RASHTRIYA ISPAT NIGAM LTD. VERSUS COMMERCIAL TAX OFFICER, COMPANY CIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... US holding that the impugned Suo Motu Revision Order passed by the First Respondent vide CTD Order No.JCO866, dated 13-02-2020, for the Tax Periods 2011-12 to 2014-15, when the suo motu revision powers were already exercised by the Second Respondent, is without jurisdiction, partly barred by limitation, and even on merits contrary to law and not sustainable and illegal and consequently set aside the same and pass other order or orders ... 2. The facts, which are germane to deal with the present Writ Petition, are as follows: The petitioner is a Registered Dealer on the rolls of the fourth respondent doing business in Petrol, Diesel and Lubricants. The petitioner is engaged in another business viz., providing service of transportation of oils and fuels for Oil Marketing Companies such as M/s. Hindustan Petroleum Corporation Limited (M/s. HPCL), Mumbai by utilizing the petitioner s own fleet of vehicles and also by engaging other vehicles. As the amounts received as consideration for the services rendered are not liable to tax, they came to be recorded in the books of accounts while disclosing in Profit and Loss account of the Corporation. While so, relating to the tax per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier order passed under same provision is not valid in the eye of law. In support of his plea, he would rely upon a Division Bench judgment of this Court in Mannepalli Venkatanarayana v. The State of Andhra Pradesh and others AIR 1960 AP 171:1959 10 STC 524 AP. He would further contend that the Joint Commissioner (ST), Nellore by virtue of the order, dated 20.10.2017, after issuing revision show-cause notice and after considering the objections raised by the petitioner, dropped further proceedings by relying upon the two memos issued by the Government. The Joint Commissioner (CT), Legal who passed the impugned order did not consider the said two memos issued by the Government. The petitioner was paying salary to his helpers and taxes etc., in respect of the bills and in the absence of any material to show that the rights of the vehicles have been transferred, it cannot be held that there was any transfer of right to use the vehicles by M/s. HPCL. 6. He would further contend that the impugned order was passed beyond the period of limitation. It is urged that when the original assessment order was passed on 19.02.2016, basing on the Profit and Loss account of M/s. HPCL, a revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revisional authority to substantiate applicability of Section 4(8) of VAT Act to the case of the petitioner, which the respondents failed to do so. At any rate, the impugned order cannot stand to the test of legal scrutiny as such Writ Petition is liable to be allowed. 10. Sri Y.N.Vivekananda, learned Government Pleader for Commercial Tax, appearing for the respondents, would contend that the scheme of Section 32 of the VAT Act, clearly postulates on its plain reading that the order passed in exercise of the powers under Section 32 of the VAT Act can be revised by a superior officer. Section 32(1) of the VAT Act contemplates exercise of power of revision by the Commissioner insofar as the order passed by his subordinates is concerned. Section 32(2) of the VAT Act contemplates conferring even such powers on the subordinates of the Commissioner and even under Section 32(2) of the VAT Act, the subordinates to the Commissioner can as well exercise the powers under Section 32(1) of the VAT Act. So, the contention of the petitioner that there cannot be any revision against the orders of revision cannot stand in view of Section 32 of the VAT Act. The decision of this Court in Mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings to revise, modify or set aside such order or proceeding and may pass such order in reference thereto as he thinks fit. (2) Powers of the nature referred to in sub-section (1) may also be exercised by the Additional Commissioner, Joint Commissioner, Deputy Commissioner and Assistant Commissioner in the case of orders passed or proceedings recorded by the authorities, officers or persons subordinate to them: Provided that the power under sub-section (1) or (s) shall not be exercised by the authority specified therein in respect of any issue or question, which is the subject matter of an appeal before or which was decided on appeal by the Appellate Tribunal under Section 33: Provided further that this restriction is not applicable in respect of other issues or questions, which are not the subject matter of an appeal before the Appellate Tribunal. (3) In relation to an order of assessment passed under the Act, the powers conferred by sub-sections (1) and (2) shall be exercisable only within a period of four years from the date on which the order was served on the dealer. 13. A plain reading of Section 32(1) of the VAT Act shows that the Commissioner may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , initially, while Sections 19 and 20 of the APGST Act deals with the powers of Appeal and Revision, the Government introduced Rule 31(5) conferring wider power on the revisional authority which could be exercised by Officer prescribed in the notification. The above Rule 31(5) was said to be in conflict with Sections 19 and 20(2) of the APGST Act. So, accordingly the vires of Rule 31(5) was challenged before the Hon ble High Court of Andhra Pradesh. Dealing with the same, the Hon ble High Court held that Rule 31(5) is ultra vires of the rule making power of the Government and is therefore invalid as such any action taken in exercise of that Rule cannot be sustained. 15. The factual matrix in the above case is that in the year 1954-55 the petitioners therein submitted returns which was assessed to tax. Later, the concerned Deputy Commissioner of Commercial Taxes issued notice to them proposing for reassessment on the premise of escaped turnover under Rule 31(1) R/w. Rule 31(5) of A.P. General Sales Tax Rules for which the petitioners filed their objections questioning the jurisdiction of the Officer and later filed the Writ Petition before the Hon ble High Court of Andhra Pradesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very difficult to accept such contention for the reason that the second respondent after perusing the proceedings recorded by the first respondent, scrutinized the assessment file and found that the dealer disclosed lorry charges in the Profit and Loss account for the years 2011-12 to 2014-15 and issued showcause notice proposing revision. It is altogether a different aspect when the second respondent had closed the proceedings on considering the objections filed by the dealer. Later, the first respondent revised the said order of the second respondent. So, the very object of looking into the assessment file is only to find out whether such an order is prejudicial to the interests of revenue. In that view of the matter, the contention of learned counsel for the petitioner that the impugned order would amount to fresh assessment, which is barred by limitation, is untenable. 19. In Bharat Sanchar Nigam Limited (third supra), the question before the Hon ble Supreme Court was the nature of transaction by which mobile phone connections are enjoyed as to whether is it a sale or is it a service or is it both? The facts in the above decision are distinguishable from the present case on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ately dealt with the issue and the Appeal filed by the Commissioner of Sales Tax, Maharashtra was dismissed. 25. In Transocean Offshore, International Ventures Limited (eighth supra), there was a copy of the agreement, dated 16.04.2010, entered into by the petitioner and it shows that the contract was for charter hire of jack up rigs 26. As evident from the impugned order, when the first respondent issued a show-cause notice to revise the order of the second respondent, the petitioner filed objections and he was given opportunity of personal hearing twice. It shows that the agreement entered into by the Dealer with the Oil Companies for supply of fleet to determine the nature of the transaction was not submitted for verification. Further, as per the objections filed by the petitioner, he claimed to have submitted copies of the agreement but they are not available on record. Further, on 18.02.2019, at the time of hearing, the petitioner agreed to submit the agreement copies along with the payment receipts but, in spite of opportunity given, the dealer failed to do so. Ultimately, the first respondent passed an order, confirming the revision proposals in part and dropping ..... X X X X Extracts X X X X X X X X Extracts X X X X
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