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TMI Blog2001 (4) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... der for Taxes, the writ petition was heard finally. 3.. The background facts leading to the filing of this writ petition be stated briefly as under: The petitioner is a registered dealer under the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter referred to as "the APGST Act"). The petitioner's assessment for the year 1997-98 was completed by the Commercial Tax Officer, the third respondent herein by order dated March 3, 2001. Aggrieved by the order of assessment passed by the third respondent, the petitioner filed appeal and stay application before the fourth respondent who is the territorial appellate authority on March 16, 2001. Even before the petitioner filed the appeal and stay application on March 16, 2001, the Commissioner of Commercial Taxes, first respondent, passed an order No. R.C.CCT/ Enft. Wing Case No. 5/CTO(I) No. V/2000-2001, on March 15, 2001, in the purported exercise of the power conferred upon him under rule 33 of the APGST Rules. It reads: "PROCEEDINGS OF THE COMMISSIONER OF COMMERCIAL TAXES: ANDHRA PRADESH: HYDERABAD Present: Sri N. Ramesh Kumar, I.A.S. R.C.CCT/Enft. Wing Case No. 5/CTO(I) No. V/2000-2001 dated March 15, 2001 Sub: APGST and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yderabad Copy to the Commercial Tax Officer, S.D. Road Circle Copy to M/s. Binjusaria Extractions Ltd., Hyderabad Copy to M/s. Shalimar Agro Tech Ltd., Hyderabad Copy to M/s. Agro Tech Foods Ltd., Hyderabad." This order was received by the petitioner on March 19, 2001. The purport of this communication is that in respect of M/s. Binjusaria Extractions Limited and M/s. Shalimar Agro Tech Limited, the department has investigated claims of consignment sales through agents in respect of assessments made under the provisions of Central Sales Tax Act and the enquiries of the departments show the claims to be not genuine and in the interest of the revenue, appeals arising out of orders disallowing such claims must be dealt by the second respondent-appellate authority. That is the reasoning which weighed with the Commissioner of Commercial Taxes to direct the appeals of M/s. Binjusaria Extractions Limited and M/s. Shalimar Agro Tech Limited involving exemption claims towards consignment sales to be dealt by the second respondent. However, the Commissioner of Commercial Taxes by the same order dated March 15, 2001 directed that the petitioner's appeal to be filed for the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unduly influenced by the order and may not be in a position to deal with the case in an unbiased manner. In fact, we submit that the main issue in our assessment is levy of higher rate of tax on imported oils in respect of which the honourable Commissioner of Commercial Taxes has directed the relevant assessments to be deferred. 4.. Our assessment for 1997-98 does not involve any issue relating to so called consignment sales but relates to APGST Act only. We therefore request your honour to clarify as to whether our appeal has to be dealt by Appellate Deputy Commissioner, Panjagutta Division or by Appellate Deputy Commissioner, Hyderabad, Rural Division, since we do not come under the context of your aforesaid order. We look forward to receiving your suitable instructions at an early date. This will help avoid all sorts of unnecessary controversies and litigations. Thanking you, Yours faithfully, for ITC Agro Tech Limited (now Agro Tech Foods Limited) Sd/- Authorised Signatory." 4.. In the letter, the petitioner contended that the assessment order was passed in violation of the order of the first respondent dated February 20, 2001 deferring the assessments; th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd final assessment orders passed-Transfer of appeals to ADC, Hyderabad (Rural) Division-Orders passed-Certain clarification soughtIssued-Regarding. Ref: 1. CCT's Enf. Case No. 5/CTO(I) No. V/2000, dated 15-3-2001. 2.. Letter dated March 20, 2001 from M/s. Agro Tech Foods Ltd. ----------- In the reference first cited, the appeals in respect of three dealers, viz., (1) M/s. Binjusaria Extractions, (2) M/s. Shalimar Agro Tech and (3) M/s. Agro Tech Foods Ltd. (formerly M/s. ITC Agro-tech) were ordered to be transferred to Appellate Deputy Commissioner (C.T.), Hyderabad Rural, from the Appellate Deputy Commissioner, Panjagutta in the interest of revenue. M/s. Agro Tech Foods Limited (formerly ITC Agro Tech) vide the reference second cited have expressed concern that their assessment under the APGST Act for the year 1997-98 does not include consignment sales, and the disputed consignment sales through fictitious persons referred to in para "one" of the proceedings in the reference first cited, is a matter of concern and stigma to their company. In this connection, it is to inform that as consignment sales are not covered and assessed under the APGST Act, it does not automatic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iously, he has directed that the transfer of appeal of the petitioner for the assessment year for 1997-98 under the APGST Act to the second respondent vide his earlier order dated March 15, 2001 stands undisturbed. The learned counsel would condemn this action as totally arbitrary and without application of mind. On the other hand, the learned Special Government Pleader for Taxes would contend that the point urged by the learned counsel for the petitioner is a technical contention, and undoubtedly, the Commissioner of Commercial Taxes has the power to transfer appeal from one appellate authority to another and that on account of transfer of the petitioner's appeal from the fourth respondent to the second respondent, the petitioner did not suffer any prejudice warranting interference by this Court under article 226 of the Constitution of India, and therefore, the writ petition is liable to be dismissed in limine. Sub-rule (1) of rule 33 of the APGST Rules reads: "33. (1) Subject to the provisions of section 19, any person aggrieved by an order passed or proceeding recorded under the provisions of the Act by any officer not above the rank of an Assistant Commissioner may appeal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he APGST Act was not justified in transferring the appeal of the petitioner from fourth respondent to the second respondent. No other reasons in support of the impugned action as regards the petitioner are forthcoming from the impugned Here italicised. order dated March 31, 2001 order or for that matter from the order dated March 15, 2001. The rationale behind the insistence that the Commissioner should record reasons in writing while transferring an appeal pending before one Appellate Deputy Commissioner to another Appellate Deputy Commissioner, in our considered opinion, is to check arbitrariness and unreasonableness on the part of the Commissioner. In other words, the reasons that may be recorded by the Commissioner for transferring an appeal from one authority to another should be valid reasons and for relevant considerations which are germane to the decision-making under the proviso. In other words, the reasons that may be assigned by the Commissioner should not be arbitrary, vague or untenable and the reasons should stand judicial scrutiny. The power granted to the Commissioner who is the donee of power under rule 33 of the APGST Rules is a discretionary power and that di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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