2015 (4) TMI 1084 - HC - VAT and Sales Tax

Powers of revision and leviability of tax at applicable rates - Section 6A of the APGST Act for the year 1992-93 - Purchase turnovers of fuel, coal and miscellaneous goods - Issue not decided and dealt by the Deputy Commissioner - Appellant contended that adequate opportunity was not given for obtaining and producing before the Commissioner the necessary and relevant information - Held that - the powers of revision, can be invoked in respect of a subject-matter which is not adjudicated by the Deputy Commissioner. Therefore, it cannot be said that the Commissioner had in fact revised the orders of the CTO under the guise of revising the orders of the Deputy Commissioner. Therefore, it follows that the Commissioner had only revised the orders of the Deputy Commissioner. Also the appellant should be given an opportunity to produce their records in support of their contentions that the said turnovers brought to tax are not assessable to tax and for fresh consideration of the subject issue by the concerned. Validity of second revision of same assessment order - Assessment order duly passed by the CTO and Deputy Commissioner took suo motu revision on two issues - Deputy Commissioner did not advert to the issue concerning section 6A, hence the Commissioner having found that revisional order insofar asnon-adjudication of issue concerning section 6A is prejudicial to the interests of the revenue of the State had taken up the suo motu revision on this particular issue which was not considered and adjudicated by the Deputy Commissioner and had sought to revise the orders of the Deputy Commissioner on the said issue and had passed the revisional orders - Held that - the law is well-settled that a second revision of the same order by the same authority on the same facts and issues is impermissible. But here the Commissioner had sought to revise and had infact revised the orders of the Deputy Commissioner and therefore, the contention that the Commissioner had revised the orders of the CTO a second time is a contention without any merit and therefore, stands rejected. Period of limitation - Sub-section (3) of section 20 of the Act - Appellant contended that order of Commissioner passed after about 5 years of the order of assessment of Deputy Commissioner - Held that - Commissioner had initiated the revision proceedings by a show cause notice dated May 3, 1999 proposing to revise the order dated March 7, 1996 of the Deputy Commissioner (CT) Panjagutta Division. Further, the Commissioner had passed revisional orders admittedly on February 29, 2000, i.e., within the period of four years from the date of the orders of the Deputy Commissioner (CT), i.e., March 7, 1996. In view of the said facts and finding that the Commissioner had revised the orders dated March 7, 1996 of the Deputy Commissioner and not the order dated March 24, 1994 of the CTO and in the light of the further fact that the impugned orders were passed within four years from the date of the orders of the Deputy Commissioner, the contention of the appellant that the impugned order is passed beyond period of limitation is devoid of merit. - Decided partly in favour of appellant

Summary

Issues Involved:
1. Whether the respondent had merely revised the orders dated March 7, 1996, of the Deputy Commissioner or in fact, revised the order dated March 24, 1994, of the CTO.
2. Whether the order of the respondent is made without jurisdiction and barred by the law of limitation.
3. Whether the order impugned is unsustainable under facts and in law.

Detailed Analysis:

Issue 1: Revision of Orders
The primary question was whether the Commissioner revised the Deputy Commissioner's order or the CTO's order. The appellant contended that the Deputy Commissioner's order was silent on the issue of tax under section 6A, thus no adjudication occurred. The Commissioner's revision was seen as revising the CTO's order, which would be beyond the limitation period. However, the court found that the Commissioner revised the Deputy Commissioner's order, not the CTO's. The Deputy Commissioner had proposed to tax turnovers related to fuel, coal, and miscellaneous goods but did not address it in the final order, effectively dropping the issue. The Commissioner, finding this prejudicial to revenue, revised the Deputy Commissioner's order, which was within his jurisdiction.

Issue 2: Jurisdiction and Limitation
The appellant argued that the revision was barred by the four-year limitation period under section 20(3) of the APGST Act. The court reviewed precedents, including *State of Andhra Pradesh v. Toshiba Anand Batteries Ltd.* and *Hyderabad Wire & Allied Products v. Commissioner of Commercial Taxes*, which established that both the initiation and completion of revision must occur within four years from the service of the order. The Commissioner issued the show-cause notice on May 3, 1999, and passed the revision order on February 29, 2000, which was within four years from the Deputy Commissioner's order dated March 7, 1996. Therefore, the revision was within the limitation period.

Issue 3: Merits of the Impugned Order
The appellant contended that the Commissioner did not provide adequate opportunity to present necessary records due to a change in management. The court agreed that the appellant should be given a chance to produce records proving that the turnovers were not taxable under section 6A. Consequently, the court set aside the Commissioner's order subjecting the turnovers to tax and remitted the matter for fresh consideration, directing the Commissioner to allow the appellant to produce relevant records and pass appropriate orders within four months.

Conclusion:
The appeal was allowed, and the matter was remitted to the Commissioner for fresh consideration on the issue of taxing turnovers under section 6A after affording the appellant an opportunity to produce necessary records. The Commissioner was directed to pass final orders expeditiously, preferably within four months. No order as to costs was made, and any pending miscellaneous petitions were closed.