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TMI Blog2001 (6) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... gayyapet and he is engaged in the business of sales of jewellery. The second petitioner also undertakes collection of old silver articles from the customers and other dealers and exchanges them at Salem for new silver articles. In the course of its business, the second petitioner sent the first petitioner to Salem with certain old silver articles and cash of Rs. 1,74,000. Accordingly, the first petitioner was travelling from Jaggayyapet to Salem, via, Tirupathi on June 17, 1996 for the said purpose and while he was waiting at the bus stand, Tirupathi to catch a bus to go to Salem, police personnel conducted a random check of the luggage of the first petitioner and the police did not find any irregularity. However, they referred the matter to the respondent, Assistant Commercial Tax Officer (Intelligence), Tirupathi. The respondent detained the petitioner and issued notices dated October 17, 1996 stating that the first petitioner was transporting the silver ornaments without valid documents and was doing business without registration and proposed to levy the tax and penalty. It is stated that the first petitioner immediately thereafter gave a letter to the respondent requesting ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as called to file objections within three days. The notices were served on the first petitioner on the same day and in response to the said notices, the first petitioner filed two separate letters expressing consent to pay the tax as well as the penalty and he has even stated that he does not require any more time for the purpose of filing objections. Accordingly, he paid the amount after receiving the orders of assessment and penalty. With reference to the copy of the statement sought for, it is stated that a letter seeking copy of the statement dated October 17, 1996 was filed by the second petitioner. Similarly, one Mr. M. Rajagopala Naidu, Chartered Accountant also filed a similar petition seeking xerox copy of the statement recorded from the first petitioner on the ground that he was authorised representative of the second petitioner. As the second petitioner was not a party to the said proceedings, the request of both the second petitioner and his authorised representative could not be complied with. Hence, they were informed accordingly through an endorsement. Therefore, it was stated that the action of the respondent is proper and just and the petitioners are not entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second petitioner and his authorised representative could not be complied with. Hence, they were informed accordingly through an endorsement. Therefore, it was stated that the action of the respondent is proper and just and the petitioners are not entitled to any relief sought for in this writ petition. 4.. From the above rival contentions, the issue that falls for consideration is "whether the respondent has acted legally in detaining the first petitioner and treating him as a casual trader and whether he collected the tax and penalty from the petitioner by coercion?" 5.. It is not disputed that the second petitioner is a registered dealer and carrying on business in silver articles and his place of business is at Jaggayyapet, Krishna district. This fact is also borne out from the records that were found by the respondent at the time of check. The order book clearly shows the registration numbers under both the Andhra Pradesh General Sales Tax Act as well as Central Sales Tax Act. In addition, a statement was recorded from the first petitioner immediately after the check. In the statement, the first petitioner has clearly stated that he is only a sales and purchase repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sement was made on the application stating that no statement is recorded from K. Chandrasekhar Rao, proprietor of M/s. Chandrasekhara Jewellery Mart, Jaggayyapet and hence copy of the statement could not be furnished; whereas in the counter it was stated that as the second petitioner was not in the evasion of the tax, copy of the statement was not furnished and this stand taken by the respondent is contrary to the endorsement made by the respondent. The relevant file produced from the office of the respondent also shows that such an endorsement was made by the respondent. This shows that the assessee was not fairly dealt with by the respondent in the matter of furnishing copies of the statements. applies only when certain articles are being transported by a transport vehicle and not to a case of this type. 7.. The learned Special Government Pleader for Commercial Taxes would contest the correctness of the contentions of the petitioners. According to him, as the first petitioner was found to be in possession of silver articles, which he could not explain properly, he was treated as a casual trader and accordingly assessed to tax. 8.. On a consideration of the above material on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a case of this type. 7.. The learned Special Government Pleader for Commercial Taxes would contest the correctness of the contentions of the petitioners. According to him, as the first petitioner was found to be in possession of silver articles, which he could not explain properly, he was treated as a casual trader and accordingly assessed to tax. 8.. On a consideration of the above material on record in the light of the contentions advanced by the learned counsel for the petitioner, we find that the action of the respondent is clearly illegal and the same is liable to be declared as illegal and unauthorised. The respondent did not refer to any of the provisions under which the articles that were in possession of the first petitioner are liable to be taxed. Firstly, the articles and jewellery of silver are liable to tax at the first sale point only in the State under item 21 of the First Schedule. It is not the case of the respondent that the articles, which are in possession of the first petitioner are new articles. Admittedly, they are old articles. Unless it is proved that the first petitioner is the first purchaser, he is not liable to pay tax in respect of the articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stop collecting post-dated cheques or money towards the tax estimated or even admitted to be due and leave it to the competent assessing officer to do that part of the job after giving opportunity to the assessee before passing an order in conformity with the provisions of the Andhra Pradesh General Sales Tax Act and the Rules. It was also held that the provisions of the Act does not authorize on the spot collection of the tax by coercion. The learned counsel also relied upon the judgment in the case of Priyanka Wines v. Assistant Commissioner, C.T. (Intelligence) [1998] 110 STC 73 (AP). In the said case, it was held on the facts, that the fact that post-dated cheques were collected was suggestive of some pressure tactics exerted on the petitioner and the court directed the respondent to return the post-dated cheques collected. The facts in the present case also, serving notice on the same date and collecting the tax and penalty, which was alleged by the petitioners by coercion and threat of detention, seems to be correct. In fact, it was alleged that a letter was filed by the petitioner seeking 15 days time, a copy of which was filed along with the writ petition. Though a co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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