TMI Blog2023 (8) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be set aside for non-furnishing of the report of the V E Department forwarded to the 1st respondent and also non-consideration of subsequent report issued by the V E Department as claimed by the petitioner and not giving an opportunity of hearing to the petitioner in this regard. In this case, the principles of natural justice were violated and further a major part of assessed period is barred by limitation and thereby, the 1st respondent had no jurisdiction to pass assessment order to that extent. In such an event, this Court can entertain writ petition. The Assessment Order dated 11.01.2019 so far as it relates to the period 2008-09 to 2012-13 (upto November, 2012) is barred by limitation and hence set aside to that extent, however, the said order relating to the tax period 2013-14 is held to be within the period of limitation - Petition allowed in part. - HON BLE SRI JUSTICE U. DURGA PRASAD RAO AND HON BLE SRI JUSTICE T. MALLIKARJUNA RAO For the Petitioner : G Narendra Chetty For the Respondent : GP For Commercial Tax ORDER (PER HON BLE SRI JUSTICE U. DURGA PRASAD RAO) The petitioner prays for writ of mandamus declaring the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013-14. The petitioner submitted letters dated 13.02.2020, 22.06.2020 and 09.07.2020 to the 1st respondent informing that she has not received the said Assessment Order and requested to issue certified copy of the order to file an appeal. However, certified copy was not furnished. Therefore, the petitioner did not file appeal. The Assessment Order for the tax period 2008-09 to 2012-13 (upto November, 2012) is barred by limitation. Further, the assessment order is unsustainable because the said order was passed without furnishing inspection material of V E department, Anantapuram to the petitioner basing on which the show cause notices were issued to the petitioner. Added to it, the 1st respondent was not justified in adding the turnover relying upon the earlier inspection report dated 21.05.2013 ignoring the subsequent inspection report of the year 2016. Added to it, it is not correct that the final hearing notice was issued to the petitioner and she refused the same. To the best of petitioner s knowledge, she has not refused to receive any such personal hearing notices, but it may be possible that the notice might be sent when the petitioner was out of station. Therefore, the 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commercial Taxes-II representing respondents. 5. Learned counsel for the petitioner based his arguments on two main planks firstly, that the Assessment Order dated 11.01.2019 insofar as it relates to the tax period 2008-09 to 2012-13 (upto November, 2012) is barred by limitation as per Section 21 of the AP VAT Act, 2005. He would submit that Assessment Order is liable to be set aside for the above said period. He placed reliance on Triveni Poly Plast Pvt Ltd. v. The Commercial Tax Officer (2014) 58 APSTJ 277 = MANU/AP/1938/2014. The second argument of learned counsel for the petitioner is that the basis for pre-assessment notices dated 08.04.2015 and 30.06.2015 was that as per the V E team s inspection report dated 21.05.2013, the petitioner excavated road metal worth Rs. 1,34,60,233/- and the same was not accounted for by the petitioner. Learned counsel would argue that subsequently in the year 2016, the same V E Department has inspected and reduced the excavated quantity from 12,292 .45 CBM to 6,479.27 CBM. Neither the first report nor the second report of V E Department, Anantapuram was furnished to the petitioner in spite of the request made to 1st respondent. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 (upto November, 2012) is barred by limitation. In this context, when perused, the Assessment Order dated 11.01.2019 passed by the 1st respondent shows that the said order was passed in respect of the tax period 2008-09 to 2013-14, wherein the quantity of 12,292.45 CBM said to be excavated by the petitioner as per the V E inspection dated 21.05.2013 was also taken into consideration. Regarding this report and the alleged 2nd report we will discuss a little while later. Thus it is clear that the impugned Assessment Order relates to the tax period 2008-09 to 2013-14. The Assessment Order was passed on 11.01.2019. Now, it has to be seen whether assessment is barred by limitation. 9. As can be seen from the impugned Assessment Order, so far as the tax year 2013-14 is concerned, basing on the inspection dated 21.05.2013 conducted by V E Department and report furnished by the said Department to the 1st respondent, it is mentioned in the Assessment Order that the petitioner has evaded a quantity of 12,292.45 CBM worth Rs. 1,34,60,233/- and on that premise, show cause notices were issued and impugned Assessment Order was passed on 11.01.2019. Thus it appears 1st respondent treated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Government Pleader that there occurred a delay in securing the particulars of the petitioner cannot be accepted in view of the statutory imposition of limitation. The other contention of learned Government Pleader that the petitioner has not questioned the impugned Assessment Order within reasonable period and therefore, the writ petition is not maintainable has no much force. It should be noted that the letters dated 13.02.2020, 22.06.2020 and 09.07.2020, copies of which are filed in the writ petition along with material papers, would show that the petitioner through those letters requested the 1st respondent to furnish certified copy of the Assessment Order to enable him to go for appeal. These copies bear the stamp of the office of the 1st respondent and more over, the respondents have not denied this fact in the counter. However, the 1st respondent has not furnished copy of the Assessment Order and therefore, at last, the petitioner filed the writ petition before this Court on 24.02.2021. Therefore, it cannot be contended that the petitioner has filed the writ petition belatedly. Consequently the decision in State of Rajasthan and others v. D.R. Laxmi s case (supra 3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for fresh consideration by the respondent. Respondent shall furnish to the petitioner, the reports/material supplied by the Regional Vigilance and Enforcement Officer, Vijayawada, and thereafter, pass appropriate orders afresh as expeditiously as possible, preferably within a period of four months from today. 13. The net result is that though the Assessment Order pertaining to the tax period 2013-14 is within the period of limitation, however, the same is liable to be set aside for non-furnishing of the report of the V E Department forwarded to the 1st respondent and also non-consideration of subsequent report issued by the V E Department as claimed by the petitioner and not giving an opportunity of hearing to the petitioner in this regard. 14. The contention of learned Government Pleader regarding the maintainability of writ petition due to availability of efficacious alternative remedy is concerned, we find no much force in it. It is true that generally the Constitutional Courts will be at loath to entertain writ petitions when alternative remedy is available. However, there are exceptions to this general principle. In Whirlpool Corporation v. Registrar of Trade Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
