2018 (2) TMI 274 - HC - VAT and Sales Tax

Recovery of Arrears of sales tax - validity of demand notice in Form No.IV dated 08.12.2014, for alleged arrears of Sales Tax for the years 2002-2003, 2003-2004, 2004-2005, 2005-2006 - APGST Act, 1957 - Whether sales within the State treated as Inter-state sale? - Held that - It is evident from the show-cause notices issued, and the assessment orders made under the CST Act, enclosed along with the counter-affidavit, that the petitioner was assessed to tax under the CST Act for his failure to submit the declarations in Form-F as proof that the goods were despatched outside the State on consignment to his agent. Payment of sales-tax by the petitioner, under the APGST Act, is on the sale of goods within the State and not for transfer of goods outside the State - the sales made by the petitioner within the State were not subjected to tax as inter-State sales, and it is only the consignment of goods, from the State of Andhra Pradesh to another State, which were treated as inter-State sales on the failure of the petitioner to submit Form-F declarations. The contention that intra-State sales were treated as inter-State sales is, therefore, not tenable. Are the assessments barred by limitation? - Held that - The Andhra Pradesh Value Added Tax Act, 2005 came into force on 01.04.2005 and consequently, in view of Section 9(2) of the CST Act, it is the provisions of the A.P. VAT Act which is the applicable State law for the assessment year 2005-06. Section 21(4) of the AP VAT Act stipulates that the prescribed authority may, based on any information available or on any other basis, conduct a detailed scrutiny of the accounts of any dealer and where any assessment, as a result of such scrutiny, becomes necessary, such assessment shall be made within a period of four years from the end of the period for which the assessment is to be made - Even for the CST assessment year 2005-06, the assessment order was passed on 18.04.2009 well within the four year limitation period prescribed under Section 21(4) of the AP VAT Act - it is evident that the assessment orders, made for these four years, are within the period of limitation prescribed, for making assessment, both under the APGST Act and the AP VAT Act. Should the period of limitation be computed till the date of passing the assessment order or till the date they are served on the dealer? - Held that - the prescribed period of limitation, for passing an assessment order under the CST Act for the three year period 2002-03 to 2004-05, is, in view of Section 9(2) of the CST Act, governed by the provisions of Section 14(1) of the APGST Act. For the assessment year 2005-06 the period of limitation for passing an assessment order under the CST Act is, on a conjoint reading of Section 9(2) of the CST Act and Section 21(4) of the AP VAT Act, four years - Much less adducing any proof of the assessment orders having been served belatedly, the petitioner has not even pleaded as such in the affidavit filed by him in support of the Writ Petition. It would be wholly inappropriate for us, in the present case, to examine, even in the absence of a plea in this regard in the writ affidavit, whether there was belated service of the assessment orders necessitating an inference being drawn that the assessment orders were either ante-dated or were passed after expiry of the period of limitation prescribed under Section 14(1) of the APGST Act and Section 21(4) of the AP VAT Act. Is passing assessment orders, at the fag end of the period of limitation, illegal? - Held that - The period of limitation, for passing an assessment order under Section 14(1) of the APGST Act, is three years from the expiry of the year to which the assessment relates. Likewise an assessment under Section 21(4) of the A.P. VAT Act is required to be made within a period of four years from the end of the period from which the assessment is to be made. As long as the assessment order is within the period of limitation, stipulated in Section 14(1) of the APGST Act and Section 21(4) of the A.P. VAT Act, it matters little whether these assessment orders were passed immediately after the end of the assessment year/assessment period, or at the fag end before expiry of the period of limitation. Since the assessing authority is empowered by law to make an assessment even at the fag end of the period of limitation, and before its expiry, the question whether he should have passed the assessment order immediately after the end of the assessment year, or at the fag end of the period of limitation, are not matters for examination in proceedings under Article 226 of the Constitution of India, as the assessing authority is entitled to pass an assessment order any time after the end of the assessment year/assessment period and before expiry of the period of limitation. Are the assessment orders void and liable to be ignored? - Held that - As the assessment orders made under the CST Act, for the assessment years 2002-03 to 2005-06, do not bear the brand of invalidity upon its forehead, it is only if necessary proceedings are taken to challenge these orders can they be quashed. These assessment orders would remain as effective as the most impeccable of orders till then. While an order without jurisdiction can be subjected to challenge even in collateral proceedings, other orders, even if they be otherwise illegal, can only be questioned on a direct challenge thereto - the contention, that these assessment orders are liable to be ignored as a nullity, does not merit acceptance. The assessment orders would, unless and until they are declared as void by this Court, continue to remain in force. Can factual pleas, raised for the first time in the reply affidavit, be examined in writ proceedings - Held that - the petitioner had copies of the assessment orders with him, when he filed the Writ Petition on 27.04.2015. Nothing prevented him from either questioning the validity of the assessment orders or raise these factual pleas, which have now been urged in the reply affidavit, in the affidavit filed in support of the Writ Petition. As these contentions, which are factual in nature, are urged for the first time in the reply affidavit dated 22.01.2018, the very day on which Writ Petition was finally heard and judgment reserved, they cannot be examined as the respondents could not have rebutted these factual assertions in the counter-affidavit filed by them much earlier. Is the demand notice vitiated by malafides? - Held that - The burden to prove the charge of malafides is always on the person who moves the court for invalidation of the action of the State and/or its agencies and instrumentalities on the ground that the same is vitiated due to malafides. The Court should resist the temptation of drawing dubious inferences of malafides or bad faith on the basis of vague and bald allegations or inchoate pleadings - Challenge to the demand notice, on the ground of malafides, must, therefore, fail. Is a single demand notice for four assessment years and its belated issue, illegal? - Held that - the assessment order for the assessment year 2002-03 was made on 10.03.2006, for the assessment year 2003-04 on 30.03.2007, for the assessment year 2004-05 on 17.03.2008, and for the assessment year 2005-06 on 18.04.2009. The final notice dated 21.07.2014 was issued just a little more than five years after the assessment orders were passed for the assessment year 2005-06 on 18.04.2009, and therefore the contention that the demand notice was issued after 11 years is factually incorrect - It is only on an assessment being made, and the tax liability determined, can a demand be raised for payment of the assessed tax. As no demand could have been raised even without an assessment order being passed, the contention that the period of four years should be computed from the end of the assessment year, and the demand notice was issued 11 years thereafter, is not tenable. Petition dismissed.

Summary

Issues Involved:

1. Whether sales within the state were treated as interstate sales.
2. Whether the assessments were barred by limitation.
3. Whether the period of limitation should be computed till the date of passing the assessment order or till the date they are served on the dealer.
4. Whether passing assessment orders at the fag end of the period of limitation is illegal.
5. Whether the assessment orders are void and liable to be ignored.
6. Whether factual pleas raised for the first time in the reply affidavit can be examined in writ proceedings.
7. Whether the demand notice is vitiated by malafides.
8. Whether a single demand notice for four assessment years and its belated issue is illegal.

Issue-wise Detailed Analysis:

I. Were Sales Within the State Treated as Interstate Sale?

The petitioner argued that the assessing authority incorrectly treated consignment transfers to agents in other states as interstate sales due to the non-submission of Form-F declarations. The court clarified that intra-state sales were taxed under the APGST Act, while interstate sales were taxed under the CST Act. The failure to submit Form-F declarations resulted in the transfers being treated as interstate sales. The court found no merit in the contention that intra-state sales were treated as interstate sales.

II. Are the Assessments Barred by Limitation?

The petitioner contended that the assessments were barred by limitation under Section 9 of the CST Act read with Section 14 of the APGST Act. The court noted that the assessment orders for the years 2002-03 to 2004-05 were made within the three-year limitation period prescribed under Section 14(1) of the APGST Act. For the year 2005-06, the assessment was made within the four-year limitation period under Section 21(4) of the AP VAT Act. Hence, the assessments were not barred by limitation.

III. Should the Period of Limitation Be Computed Till the Date of Passing the Assessment Order or Till the Date They Are Served on the Dealer?

The petitioner argued that the assessment orders were not served within the limitation period. The court stated that the limitation period is for passing the assessment order, not for its service. The petitioner did not plead or provide evidence in the writ affidavit regarding the belated service of the assessment orders. Therefore, the court did not entertain this contention.

IV. Is Passing Assessment Orders at the Fag End of the Period of Limitation Illegal?

The petitioner argued that the assessment orders were made at the fag end of the limitation period without explanation for the delay. The court held that as long as the assessment orders were within the limitation period, it did not matter whether they were passed immediately after the end of the assessment year or at the fag end. The court found no merit in this contention.

V. Are the Assessment Orders Void and Liable to Be Ignored?

The petitioner contended that the assessment orders were void and non-est in law. The court stated that even a void order remains effective until it is successfully challenged and set aside by a competent court. The assessment orders did not bear the brand of invalidity on their face and were not challenged in the writ petition. Therefore, the court did not accept the contention that the assessment orders were void and liable to be ignored.

VI. Can Factual Pleas Raised for the First Time in the Reply Affidavit Be Examined in Writ Proceedings?

The petitioner raised several factual contentions for the first time in the reply affidavit. The court noted that these contentions were not pleaded in the writ affidavit and could not have been rebutted by the respondents in their counter-affidavit. Therefore, the court did not entertain these factual contentions.

VII. Is the Demand Notice Vitiated by Malafides?

The petitioner argued that the demand notice was issued with malafides due to the long delay in demanding the alleged arrears. The court held that the period of limitation prescribed under the APGST Act and the AP VAT Act is for passing the assessment order, not for recovery of the assessed tax. The court found no merit in the contention that the demand notice was vitiated by malafides.

VIII. Is a Single Demand Notice for Four Assessment Years, and Its Belated Issue, Illegal?

The petitioner contended that a single demand notice for four assessment years was issued after an inordinate delay. The court noted that there is no statutory requirement prohibiting a common demand notice for multiple assessment years. The final notice was issued just a little more than five years after the last assessment order, not eleven years as claimed by the petitioner. The court found no merit in this contention.

IX. Conclusion:

The court dismissed the writ petition, finding no merit in the contentions challenging the validity of the demand notice. The miscellaneous petitions were also dismissed without costs.