9911796707
TMI Blog2011 (8) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... JJ. S. Dwarakanath for the petitioner A.V. Krishna Kowndinya, Standing Counsel for Commercial Taxes, for the respondent ORDER The petitioner, M/s. Pratibha Constructions Engineers and Contractors (India) Private Limited, Kolhapur, Maharashtra State, assails the order dated July 24, 2008, passed by the Commercial Tax Officer, Aryapuram Circle, Rajahmundry, East Godavari District, the respondent, in G. I. No. 4225/2002-03 which was served on it by registered post on December 27, 2010 as illegal, arbitrary, without jurisdiction and barred by time. The petitioner-company is engaged in execution of works contracts. It has its registered office at Kolhapur, Maharashtra. It obtained a certificate of registration under the Andhra Pradesh General Sales Tax Act, 1957 (for short, the 1957 Act ) on the rolls of the respondent which was valid from November, 2002 and the same was surrendered to the respondent in April, 2005 as it had completed its works awarded by its principal contractor in the State of Andhra Pradesh. The petitioner-company commenced its works in Andhra Pradesh from the year 2002-03 and the final assessment thereof was completed by the respondent by ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment years 2003-04 and 2004-05. In reply to the said counter, the petitioner-company, while disputing the averments of the respondent, stated that it was not aware of the so-called revision of the assessment order passed by the respondent earlier for the assessment year 2002-03 as no proposal or order thereof was served upon it. It also stated that the alleged service of said revised assessment order dated July 24, 2008, by way of affixture can only be invoked as a last resort. However, the said writ petitions, W. P. Nos. 12171 and 12238 of 2010, were disposed of by this court on December 30, 2010 directing the respondent to refund the amounts due to the petitioner-company within four weeks from the date of the said order. While matters stood thus, the respondent served the alleged revised assessment order claimed to have been passed on July 24, 2008, by registered post with acknowledgement due to the registered office of the petitioner-company at Kolhapur, Maharashtra, on December 27, 2010. The said revised assessment order was appeared to have been passed by the respondent based on the objections raised by. the Accountant-General (Audit), who opined that light diesel oil ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order dated April 10, 2007 was revised on July 24, 2008 and the same was finally served on the petitioner-company by registered post with acknowledgement due on December 27, 2010 and therefore the service of the same is within the period of limitation. It is also averred that the respondent after going through the report and upon verification of the record passed the impugned order independently. The respondent also denied the contention that no show-cause notice was issued prior to the passing of the revised assessment order as show-cause notice dated July 15, 2008 was served upon the petitioner-company by way of affixture as it closed down its business activities without any intimation to the respondent. Refuting the averments made in the said counter, the petitioner-company while reiterating what has been averred in the writ affidavit stated that though the impugned order is an appealable order but in view of the fact that the same is challenged on the grounds of without jurisdiction and barred by limitation, the question of relegating the petitioner to appellate remedy does not arise. It is also stated that the impugned order being a consequential order having been passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... naka Durga Wines, Gunur v. Commissioner of Commercial Taxes, Hyderabad [2001] 33 APSTJ 89. He therefore prayed that the impugned order is liable to be set aside arid the writ petition be allowed in limine. Per contra, the learned Special Standing Counsel for Commercial Taxes while supporting the impugned order submitted that pursuant to the order dated July 17, 2006 passed by the appellate authority the assessment order dated April 10, 2007 was passed and thereafter based on the objections raised by the audit party of the Accountant-General, a show-cause notice was served upon the petitioner-company by way of affixture as per rule 58 of the Rules as it dosed down its business activities and as there was no response to the said notice from the petitioner-company, the respondent rightly passed the impugned order dated July 24, 2008 independently. He also argued that as soon as the respondent came to know the exact address of the petitioner-company pursuant to the filing of its two writ petitions before this court in W. P. Nos. 12171 and 12238 of 2010, a copy of the impugned order was communicated to the petitioner-company by registered post with acknowledgement due on December 27, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the petitioner-company among other things furnished the details regarding its registered office at Kolhapur, Maharashtra State. Therefore, the respondent now cannot be permitted to state that the petitioner-company closed down its business activities at Rajahmundry office without intimation to him and therefore the respondent does not know the further address of the petitioner-company. Rule 58 of the Rules clearly contemplates as to how any notices, summons, order or proceedings under the 1957 Act or under the Rules may be effected. Rules 58 of the Rules reads thus:- 58. The service on a dealer an assessing of any notice, summons, order or proceedings under the Act or under these Rules, may be effected in any of the following ways, namely,- (a) by giving or tendering it to such dealer or his manager or agent; (b) if such dealer or his manager or his agent is not found, by leaving it at his last known place of business or residence or by giving or tendering it to adult member of his family; or (c) if the address of such dealer is known to the assessing authority; by sending it to him, by registered post, and if it is returned un-served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly 17, 2006. It is therefore clear that the respondent under the impugned order revised assessment of the petitioner-company for the year 2002-03 suo motu without any new material on record which ought to have been considered but not considered earlier. The respondent cannot revise the assessment order passed by him earlier on his own volition without there being any new material on record for doing so. In Girdharlal and Company v. State of Andhra Pradesh [1995] 97 STC 442 (AP), while dealing with the aspect of condition precedent for reopening assessment, held thus (pages 444 and 445 in 97 STC):- . . .The criterion to judge whether there has been a reasonable exercise of power under the said provision is not whether there was lack of diligence but whether there was lack of material at the time of assessment that necessitated exercise of the power. If necessary material was available on record but the assessing authorities had not adverted to relevant aspect due to lack of diligence, it would riot afford a ground to the assessing authority or his successor to exercise power under section 14(4), but if the record did not contain the relevant material which comes to the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. Therefore, the same is barred by limitation. The Supreme Court in State of Andhra Pradesh v. M. Ramakishtaiah and Co. [1994] 93 STC 406 (SC), while dealing with the period of limitation of four years under the 1957 Act, held thus (page 407 in 93 STC):- We are of the opinion that the theory evolved by the High Court may not be really called for in the circumstances of the case. We are of the opinion that this appeal has to be dismissed on the ground urged by the assessee himself. As stated above, the order of the Deputy Commissioner is said to have been made on January 6, 1973, but it was served upon the assessee on November. 21, 1973, i.e., precisely 10 months later. There is no explanation from the Deputy Commissioner why it Was so delayed. If there had been a proper explanation, it would have been a different matter. But, in the absence of any explanation whatsoever, we must presume that the order was not made on the date it purports to have been made. It could have been made after the expiry of the prescribed four years' period. The civil appeal is accordingly dismissed. In the light of the above discussion, the contention of the respondent that the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
