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TMI Blog2016 (6) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner received a phone call from the Office of the first respondent that the petitioner carrying on business by generating E-way bills. Immediately, the petitioner verified Eway bill account of the petitioner, found that 103 E-way bills were generated in the name of petitioner, but in fact they were not generated by the petitioner from the AP VAT portal. The petitioner complained the same to the police, while requesting the respondents to co-operate with the petitioner in unearthing the fraud committed by the unknown persons, informed that the petitioner did not generate E-way bills except two E-way bills, which were used for purchase of machinery and spares. While the petitioner taking necessary steps to find out who generated E-way bills, the petitioner received a notice from the first respondent dated 02.07.2015 alleging that as many as 105 E-way bills and three C-forms were generated by the petitioner during the period from 16.04.2015 to 09.06.2015 and out of the said Eway bills 16 CST E-way bills were used for the purpose of purchase of Ceramic tiles (14) machinery, two spares and the remaining were used for sale of goods. 03. On receipt of the complaint from the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 09.06.2015 and requested the petitioner to make available all records pertaining to all business activities for verification. The authorized representative of the petitioner gave statement before the respondent on the said date informing that the proprietor of the firm, Smt. Vem Bhadramma, is residing at Warangal and would shortly intimate her availability at the business premises to the first respondent. During audit it was noticed that from January 2015 to April 2015 the petitioner had declared NIL turnover both under the AP VAT Act, 2005 and under the CST Act, 1956. Further it was noticed that for the period from 01.01.2015 to 09.06.2015 the petitioner had utilized 16 E-way bills and the turnover declared in the said E-way Bills is to the extent of Rs. 96,16,638/-; thus E-way bills utilized for the purpose of glazed ceramic tiles, but the same was not reflected in the monthly returns filed under the AP VAT Act, 2005. 07. The first respondent also issued show cause notice proposing the petitioner subject the above turnover to tax by adding gross profit @ 5% and arrived at the notional sale value of Rs. 1,00,97,470/- and proposed to subject the same to tax @ 14.5% amounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objections, admitting utilization of E-way bills No.CST3715005192579391 dated 19.05.2015 and Bill No.CST371506099158194 dated 09.06.2015 for purchase of machinery to install, in the petitioner's factory. Thus, it is clear that the petitioner had logged to his account in the website of Commercial Taxes Department on 19.05.2015 as well as on 09.06.2015, generated E-way bills periodically, but when it was noticed by the first respondent about generating huge quantity of E-way bills the petitioner alleged to avoid tax liability and the said complaint is frivolous. Therefore the first respondent rightly passed the impugned Assessment Order under AP VAT Act, 2005 and not liable to be quashed. 09. One of the contentions of the first respondent is that the petitioner did not approach the Court with clean hands and that the petitioner is entitled to avail statutory remedy provided under Section 31 of AP VAT Act, 2005. Therefore, by invoking extraordinary jurisdiction under Article 226 of the Constitution of India, the petitioner is not entitled to claim discretionary relief in a petition filed under Article 226 of the Constitution of India and prayed for dismissal of the writ petition. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion before us is that it has not commenced its business, installing machinery etc., and business is at the feotus stage. If the business is not commenced and it is a start up business as contended by the petitioner, nothing prevented to register as start up under Rule 9 of AP VAT Rules 2005 to claim benefits of start up registration. Once registered as TOT dealer, it is not open to the petitioner to contend that the business is not yet commenced. When the petitioner became registered dealer, the first respondent provided account for generating E-way bills both under AP VAT Act, 2005 and CST Act, 1956, furnishing user ID and password to the petitioner and the person who knows the user ID and password alone can access the account of the petitioner with the Commercial Taxes Department Website. But the contention of the petitioner is that the third parties hacked the website of Commercial Taxes Department, logged on to the account of petitioner, generated 105 E-way bills. 15. In fact, as per the provision of AP VAT Act, 2005 and Rules framed the Department introduced the system of generating E-way bills to ensure the collection of tax from the dealers to avoid evasion of tax by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bills were generated. If really the account was not accessed and re-set the password, nothing prevented the petitioner to give complaint to the police concerned after due verification of the petitioners account. But strangely on receipt of show cause notice in Form VAT 305A, the story of third parties accessing to the account of petitioner and generation of E-way bills is invented conveniently. Maintaining silence for more than four months though 105 E-way bills were generated from the account of the petitioner is itself indicates that the petitioner is unmindful about disclosing the turnover by filing 'NIL' turnover for those months. Accessing the account of the petitioner, generating two CST E-way bills on 19.05.2015 and 09.06.2015 and filing return on April with 'NIL' turnover itself suffice to conclude that the petitioner is aware about the accessing of account and the E-way bills generated from the Commercial Taxes website. Even according to the material on record, the petitioner generated the following E-way bills S. No. LEAF NO. DATE AMOUNT (in Rs.) COMMODITY 1 CST371504164157060 16.04.2015 875294 Ceramic Tiles and Glazed Tiles and Earthen Tiles. 2 CST371 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner, generating of E-way bills, but the first respondent is not under obligation to wait till completion of criminal proceedings. Even otherwise, the petitioner admittedly generated two CST E-way bills on 19.05.2015 and 09.06.2015, the petitioner would have disclosed the said fact in VAT form 200 filed through online, but surprisingly filed NIL turn over return. Therefore, the petitioner conveniently suppressed, even generating two CST Eway bills referred above on 19.05.2015 and 09.06.2015 for Rs. 25,55,250/-, in the turnover. Originally manual way bill are accepted but to plug in lope holes in Manual system and to avoid loss of revenue the Commercial Sales Tax Department by exercising power under Section 77 and 78 of AP VAT Act issued circular regarding issue of E-way bills, making it mandatory to transact business by any VAT or TOT dealer. The petitioner did not dispute transacting business by E-way bills and admitted about generating CST E-way bills from the AP Sales Tax Department web portal, but pleaded ignorance about misusing way bill till receipt of notice. When user ID and password are provided to the dealer, dealer alone is expected to generate Eway bills and nobo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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