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TMI Blog2009 (4) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... ax on a turnover of Rs. 5,85,02,837 under section 6A of the APGST Act, towards purchase of coal and fire-wood from unregistered dealers within the State. Aggrieved thereby, the petitioner preferred an appeal to the Appellate Deputy Commissioner (Commercial Tax), Guntur who, by order dated October 1, 2007, allowed the appeal. Thereafter the first respondent, exercising the powers of suo motu revision under section 20 of the APGST Act, issued showcause notice dated December 1, 2008 proposing to revise the appellate order and to restore the assessment order of the second respondent on the ground that the purchase price under the APGST Act was inclusive of all expenses incurred by the dealer till the goods reached its premises. The petitioner filed its preliminary objections on January 16, 2009 contending that, since the same issue for the earlier assessment year 2001-02 (APGST) was pending adjudication before the Sales Tax Appellate Tribunal, Visakhapatnam, in T.A. No. 462 of 2007, the first respondent should defer the revision proceedings till the disposal of T.A. No. 462 of 2007 in view of the bar under section 20(2A) of the APGST Act. The first respondent called upon the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending before the Tribunal in T.A. No. 462 of 2007, was whether post-purchase expenses incurred by the petitioner after the sale was completed at the vendor's place formed part of the purchases and, therefore, liable to tax under section 6A of the APGST Act. Learned counsel would submit that, in view of the prohibition under section 20(2A) of the APGST Act, the impugned order of revision dated February 17, 2009 was without jurisdiction and was liable to be quashed. The learned counsel would submit that the Full Bench judgment of this court, in Indo National Limited v. Commissioner of Commercial Taxes, A.P., Hyderabad [2004] 136 STC 586; [2001] 33 APSTJ 206, had been followed by a Division Bench of this court in Jyothi Dairy Pvt. Ltd., Hyderabad v. Commercial Tax Officer, Jeedimetla Circle, Hyderabad [2007] 44 APSTJ 87. Learned counsel would also rely on the Division Bench judgments of this court in Soft Foam Industries (P) Ltd. v. Additional Commissioner of Commercial Taxes, Hyderabad in W.P. No. 7745 of 2007 dated June 18, 2007, and Voltas Limited v. Assistant Commissioner (CT), Hyderabad [2009] 25 VST 53 (AP) judgment in W.P. No. 1229 of 2009 dated February 11, 2009. He wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Sales Tax Tribunal and a revision was initiated by the authority under the Act, if a request was made by the assessee to stay the revision till the disposal of the appeal, in view of the mandate of section 20(2A), stay should invariably be granted. The impugned order was set aside, the proceedings before the revisional authority was restored and the respondents were directed to keep the matter pending till the appeal before the Tribunal was decided. In Soft Foam Industries (P) Ltd. W.P. No. 7745 of 2007 dated June 18, 2007, the Division Bench noted that the issue pending before the revisional authority, whether the petitioner was liable to pay interest on certain liability or not, was the same issue pending adjudication before the Tribunal. As this was evidently an issue of law, and not of fact, the Division Bench, following Indo National Limited [2004] 136 STC 586 (AP); [2001] 33 APSTJ 206, allowed the writ petition, set aside the order of the revisional authority and directed that the matter be kept pending before the revisional authority till the appeal before the Tribunal was finally decided. In Voltas Limited [2009] 25 VST 53 (AP), the writ petition was filed to decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, it by itself gives effect to that view, the result would be utter confusion (Mahadeolal Kanodia v. Administrator General of W.B AIR 1960 SC 936, Shridhar v. Nagar Palika, Jaunpur [1990] Supp SCC 157). As the Full Bench judgment in Indo National Limited [2004] 136 STC 586 (AP); [2001] 33 APSTJ 206, would bind us, it is useful to extract the relevant paragraphs therefrom. The Full Bench observed thus: (page 592, 597 of STC) "Sub-section (1) of section 20 is no doubt of wide amplitude. But the revisional power of the Commissioner in terms of sub-section (1) or sub-section (2) is sought to be curtailed by reason of sub-section (2A). The phraseology used in sub-section (2A) of section 20 of the Act is absolutely clear and unambiguous, in terms whereof, a bar has been created to entertain any application in respect of 'any issue or question' which was the subject-matter of an appeal or which was decided in appeal by the Appellate Tribunal under section 21. There cannot be any dispute that in the hierarchy of authorities provided for under the Act, the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion or issue is of a fact, the same may be confined to that particular order but if the issue or question related to a point of law, the intention of the Legislature appeared to be that the assessee should not be vexed on such a question again and again and the bar under section 20(2A) would apply. Following the Full Bench judgment in Indo National Limited [2004] 136 STC 586 (AP); [2001] 33 APSTJ 206, a Division Bench of this court, in Vorion Chemicals & Distilleries Ltd. [2009] 19 VST 5 (AP); [2008] 47 APSTJ 87, held that, since the order of remand was only on a question of fact, and not of law, section 20(2A) did not prohibit the revisional authority from passing such an order merely because an issue of law relating to the same assessee had been decided by the Tribunal earlier. In the impugned order dated February 17, 2009, the Joint Commissioner held that the questions (1) whether a particular turnover was exclusive of freight or not; (2) whether the purchase price relating to the purchases made from unregistered dealers should include all expenses including freight for the purpose of levy of tax; and (3) whether the agreement of purchase with the unregistered dealers stipula ..... X X X X Extracts X X X X X X X X Extracts X X X X
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