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2019 (8) TMI 566 - HC - VAT and Sales TaxCondonation of delay - Validity of assessment order - Levy of Sales tax in terms of Section 4 (7) (e) of Telangana VAT Act - petitioner sell some semi-finished buildings with a precondition that the task of developing and constructing should be entrusted only to the petitioner for Group Housing - denial of composition scheme - time limitation - HELD THAT - The writ petition is liable to be thrown out on the ground of delay and laches. The order of assessment challenged in the writ petition is dated 13.08.2013. The writ petition was filed on 11.04.2018. The petitioner has had knowledge of the order of assessment, as they seem to have filed an appeal under Section 31, with a delay of 27 days. Apart from the delay, there were also deficiencies in the presentation of the appeal, as the appeal fee was not paid and predeposit condition was not satisfied. Notices were issued by the Appellate Authority and the Authorized Representative confirmed having paid the prescribed fee and the pre-deposit condition after the expiry period of limitation. Once it is found that the order of rejection of the appeal was served on the Authorized Representative, then it is a matter between the petitioner and the Authorized Representative. The Department was not at fault, as they had complied with the statutory requirements - the petitioner could not have kept quiet for four years after the order of the Appellate Authority, to come up with the above writ petition. Hence, even on the ground of delay and laches, the writ petition is liable to be thrown out. The question whether there was suppression and the question whether enlarged period of limitation will apply on account of suppression, are all mixed questions of fact and law. Therefore, the petitioner ought to have raised them in the appeal by filing it within time and by complying with the conditions for filing of the appeal in the proper form. Since the petitioner has failed to do so, the writ petition deserves to be dismissed. Petition dismissed.
Issues Involved:
1. Delay and laches in filing the writ petition. 2. Validity of the assessment order under Section 4 (7) (c) of the Telangana Value Added Tax Act, 2005. 3. Applicability of the Government Memo dated 17.06.2011 and subsequent circular dated 22.03.2012. 4. Entitlement to composition under Section 4 (7) (d) of the Act. 5. Bar of limitation on the assessment order. Detailed Analysis: 1. Delay and Laches in Filing the Writ Petition: The court noted that the writ petition was filed on 11.04.2018, challenging an assessment order dated 13.08.2013. The petitioner had knowledge of the assessment order as they filed an appeal with a delay of 27 days and deficiencies in the presentation, such as non-payment of the prescribed fee and pre-deposit condition. The appeal was dismissed on 26.06.2014, and the petitioner remained inactive for four years before filing the writ petition. The court emphasized that the delay and laches were significant, and the petitioner failed to provide a satisfactory explanation for the delay. Consequently, the writ petition was liable to be dismissed on these grounds alone. 2. Validity of the Assessment Order under Section 4 (7) (c) of the Act: The petitioner argued that the assessment order was invalid as Section 4 (7) (c) was omitted with effect from 15.09.2011. However, the court found that this argument was not raised in the reply to the show-cause notice, during arguments before the Assessing Officer, or in the affidavit supporting the writ petition. Additionally, the assessment period covered June 2007 to March 2013, during which Section 4 (7) (c) was in force until 15.09.2011. Therefore, the court rejected the argument, stating that the assessment for the period before 15.09.2011 was valid under the then-existing provision. 3. Applicability of the Government Memo and Circular: The petitioner relied on a Government Memo dated 17.06.2011 and a subsequent circular dated 22.03.2012, which allowed unregistered apartment builders to register and pay tax at 1% under a composition scheme. The court noted that this was a one-time measure applicable only to transactions up to 17.06.2011. The petitioner did not register or pay 1% tax along with interest under the composition scheme. Therefore, the court held that the petitioner could not claim the benefit of the amnesty provided by the memo and circular. 4. Entitlement to Composition under Section 4 (7) (d) of the Act: The petitioner claimed entitlement to composition under Section 4 (7) (d), which allows dealers to pay tax at 5% on 25% of the composite value of land and building. The court highlighted that the entitlement to composition is subject to conditions prescribed by the Telangana Value Added Tax Rules, 2005. Rule 17.4 (b) requires dealers to notify the Prescribed Authority in Form VAT 250 before commencing work. The petitioner did not file Form VAT 250 before commencing work, and the agreements with purchasers were dated 2010 and 2011. As the petitioner never exercised the option in the prescribed manner, they could not claim the benefit of composition under Section 4 (7) (d). 5. Bar of Limitation on the Assessment Order: The petitioner contended that the assessment order was barred by limitation since assessments under the VAT Act are monthly. However, the respondent argued that the enlarged period of limitation applied due to suppression. The court stated that questions of suppression and the applicability of the enlarged period of limitation are mixed questions of fact and law. These should have been raised in the appeal, filed within time and in the proper form. Since the petitioner failed to do so, the court found no merit in this contention. Conclusion: The court dismissed the writ petition on grounds of delay and laches, invalid arguments regarding the omission of Section 4 (7) (c), inapplicability of the Government Memo and circular, failure to comply with conditions for composition under Section 4 (7) (d), and unresolved questions of limitation due to suppression. There was no order as to costs, and any pending miscellaneous petitions were closed.
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