2016 (6) TMI 1109 - HC - VAT and Sales Tax

Validity of recovery notice - period of limitation - maintainability of writ petition - notice towards arrears of Sales Tax due from him for the assessment years 1996-97 and 1999-00 was issued after a lapse of more than 2 decades - The petitioner came to know about rejection of the Appeal vide order dated 06.01.2004 only on receipt of statutory notice. Held that - No doubt service of notice under Rule 58 is mandatory but when the Appeal is pending against the order passed by the Appellate Deputy Commissioner before the Tribunal, the validity of the orders passed by the 4th respondent and Appellate Deputy Commissioner cannot be gone into at this stage and, at best, the law laid down by the Courts in the above decisions are helpful to the petitioner in the pending Appeal before Tribunal but not in the present case. In the present case, no statutory violation is pointed by the petitioner except alleged non-compliance of Rule 58, which is the subject matter for decision by the Appellate Tribunal. Therefore, we find that no discretion can be exercised under Article 226 to declare that the orders passed by the 3rd respondent are illegal and arbitrary. - writ petition dismissed - Decided against the petitioner.

Issues Involved:
1. Legality of the assessment order dated 24.02.2000.
2. Non-service of assessment order and rejection of appeal.
3. Statutory notice issued after two decades.
4. Rejection of stay by the Appellate Deputy Commissioner (ADC), Hyderabad.
5. Compliance with Rule 58 of the APGST Rules.

Detailed Analysis:

1. Legality of the Assessment Order Dated 24.02.2000:
The petitioner, a partnership firm engaged in cement manufacturing, was assessed a tax liability of Rs. 10,30,948/- for the year 1996-97 by the 4th respondent. The petitioner contended that the assessment order was passed without following the procedure under the Andhra Pradesh General Sales Tax Act (APGST Act), and without considering the tax exemption certificate issued by the Commissioner of Industries. The 4th respondent did not serve the original assessment order on the petitioner, rendering the order arbitrary and illegal.

2. Non-Service of Assessment Order and Rejection of Appeal:
The petitioner only became aware of the assessment order upon receiving a demand notice on 15.03.2001. An appeal was filed before the ADC, Hyderabad, which was rejected without serving any notice to the petitioner. The petitioner argued that the rejection of the appeal without proper notice was in violation of the APGST Act and Rules.

3. Statutory Notice Issued After Two Decades:
A statutory notice dated 13.01.2015 demanded Rs. 11,72,717/- towards sales tax arrears for the assessment years 1996-97 and 1999-00. The petitioner argued that the demand was barred by limitation, issued after more than two decades, and ignored the tax exemption granted by the Commissioner of Industries.

4. Rejection of Stay by the ADC, Hyderabad:
During the pendency of the appeal before the Telangana Value Added Tax Appellate Tribunal, the petitioner filed for a stay of recovery of tax, which was rejected by the ADC, Hyderabad. The 3rd respondent also dismissed the revision for stay, citing non-compliance with Rule 58 and the absence of a stay application before the ADC, Hyderabad.

5. Compliance with Rule 58 of the APGST Rules:
The petitioner contended that the 3rd respondent and ADC, Hyderabad did not follow the procedure prescribed under Rule 58 for serving notices and orders. The court noted that Rule 58 outlines specific procedures for service of notices, including personal delivery, registered post, and affixing notices at the business or residence. The petitioner argued that due to non-service of notices, they could not pursue the proceedings in time.

Court's Findings:

Assessment Order and Service of Notices:
The court found that the petitioner did not respond to notices issued by the 4th respondent and failed to submit the required books of accounts, leading to a best judgment assessment. The petitioner did not file sales tax returns but only monthly turnover returns, which were insufficient.

Rejection of Appeal and Stay Application:
The court observed that the petitioner did not file a stay application under Section 19(2-A) of the APGST Act before the ADC, Hyderabad. Consequently, no order was passed under Section 19(2-A), and thus, no revision could be filed under Section 19(2-B). The 3rd respondent's rejection of the stay was found to be in accordance with the law.

Compliance with Rule 58:
The court acknowledged the mandatory nature of Rule 58 but noted that the validity of the orders passed by the 4th respondent and ADC, Hyderabad was already under appeal before the Tribunal. The court refrained from examining the legality of these orders in the writ petition.

Discretionary Relief under Article 226:
The court emphasized that discretionary relief under Article 226 of the Constitution is not warranted when the petitioner has not approached the court with clean hands. The petitioner's delay in responding to notices and pursuing legal remedies was highlighted as a significant factor.

Conclusion:
The writ petition was dismissed, and the court found no reason to interfere with the order passed by the 3rd respondent. The observations made were limited to the present petition and would not affect the pending appeal before the Tribunal.

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