9911796707
TMI Blog2012 (7) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... ains to the assessment year 2009-10; W.P. No. 4065 of 2012 to the assessment year 2008-09; and W.P. No. 4204 of 2012 to the assessment year 2007-08. The facts in W.P. No. 4060 of 2012 are representative of the relevant facts in the other writ petitions as well and are recorded for analysis. The petitioner is a public sector company engaged in erection and commissioning of power plants in several States. As part of its business of erection and commissioning of power plants, the relevant division of the petitioner-company is engaged in purely labour oriented jobs not involving transfer of any material whatsoever to the customer. It pays service tax on its entire receipts. It is a registered dealer under the Andhra Pradesh Value Added Tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount deposited by the contractee from the account of the petitioner, within the time stipulated, and to pass appropriate orders determining the amount of refund under section 38(1)(b) read with section 40 of the Act after affording opportunity of hearing to the petitioner. Consequent on the order of this court above, the petitioner applied to the second respondent for refund duly furnishing the relevant material. The first respondent passed the assessment orders in respect of the assessment years in question, all dated January 31, 2011 assessing the petitioner to "nil" turnover, concluding that the petitioner was engaged in purely labour and service works not involving transfer of any material and enumerated the excess tax payment. The fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontractee towards the works executed for it by the petitioner, there is also no undue enrichment to the petitioner. However since the first respondent failed to record any findings or set out any discussion (on the objections of the petitioner in response to the show-cause notice except extracting the provisions of section 22(3A) read with rules 3(a)(b) of the 2005 Rules and confirmed the proposals of forfeiture without recording reasons for the same), the Appellate Deputy Commissioner set aside the order of forfeiture dated March 8, 2011 and remanded the matter for disposal de novo. Consequent on the remand, the first respondent passed the impugned order dated January 23, 2012 recording the following reasons and again forfeiting the tax o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery specific provision exclusively for covering the works contractors. The provisions of section 38(9) read with rule 35(13) came into force from May 1, 2009 only. Therefore, the amount of tax Rs. 50,89,185 collected in excess is hereby forfeited." From the order of the first respondent impugned herein, it is clear that the first respondent disregarded the findings recorded by the Appellate Deputy Commissioner in the order dated October 27, 2011 declaring in substance, the entitlement of the petitioner to refund of the tax deducted from the amounts due from APGENCO to the petitioner and deposited to the Revenue by way of TDS. Sri Balaji Varma, the learned Special Government Pleader for Commercial Taxes, fairly concedes the position that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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