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TMI Blog2019 (8) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... od of limitation. Once it is found that the order of rejection of the appeal was served on the Authorized Representative, then it is a matter between the petitioner and the Authorized Representative. The Department was not at fault, as they had complied with the statutory requirements - the petitioner could not have kept quiet for four years after the order of the Appellate Authority, to come up with the above writ petition. Hence, even on the ground of delay and laches, the writ petition is liable to be thrown out. The question whether there was suppression and the question whether enlarged period of limitation will apply on account of suppression, are all mixed questions of fact and law. Therefore, the petitioner ought to have raised them in the appeal by filing it within time and by complying with the conditions for filing of the appeal in the proper form. Since the petitioner has failed to do so, the writ petition deserves to be dismissed. Petition dismissed. - Writ Petition No. 12557 OF 2018 - - - Dated:- 30-4-2019 - SRI V. RAMASUBRAMANIAN AND SRI P. KESHAVA RAO, JJ. For The Petitioner : M/s. AVA Siva Kartikeya For The Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t only the order of assessment, but also the rejection of the appeal and the issue of the demand notice under the Revenue Recovery Act. 7. The main contention of the petitioner is that the Assessing Officer is not entitled to thrust an assessment under Section 4 (7) (c) and 4 (7) (e) of the Act merely on the ground that the transactions regarding land and building are split and that when the petitioner has been paying VAT at 4% of 25% of the gross receipts under Section 4 (7) (d) of the Act, for the value of both land and construction, the respondent cannot deny the benefit of composition under Section 4 (7) (d) of the Act. Another contention of the petitioner is that since returns are filed monthwise under the VAT Act, 2005 and since assessments are completed corresponding to each month, the order of assessment passed on 13.08.2013 relating to the period from June, 2007 to March, 2013 is barred by limitation to some extent. Reliance is placed in this regard on the decision of this Court in K.G.F. Cottons Private Limited v. Assistant Commissioner 2015 (81) VST 1 . 8. The respondents have filed a counter affidavit contending inter alia that the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authorized Representative, but the petitioner kept quiet for four years thereafter; that even penalty proceedings were initiated and an order of penalty was passed in Form VAT 203, dated 19.07.2014; that the order of penalty has also attained finality; that the petitioner is not entitled to the benefit of the decision of this Court in M/s. Omega Shelters Private Limited 2015 (61) APSTJ 1 , since the petitioner was an unregistered dealer for a portion of the period; that as per the provisions of the Act, a dealer may opt for composition, at the time of commencement of the work by filing Form VAT 250; that when admittedly the sale was of semi-finished constructions, the work had already commenced and hence the question of exercising option of composition did not arise; that in cases of this nature, there is wilful evasion and hence the larger period of limitation would apply and that therefore the writ petition is liable to be dismissed. 9. The petitioner has filed a reply to the counter affidavit filed by the respondents. It is contended in the reply that the Authorized Representative was seriously ill and he could not bring to the notice of the petitioner, the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition, the petitioner has not made a whisper about the service of the copy of the order of the Appellate Authority dated 26.06.2014, on their Authorized Representative. After the respondents filed a counter, the petitioner has come up with an explanation that the Authorized Representative became seriously ill and he did not forward the copy of the order. 13. But, once it is found that the order of rejection of the appeal was served on the Authorized Representative, then it is a matter between the petitioner and the Authorized Representative. The Department was not at fault, as they had complied with the statutory requirements. Therefore, the petitioner could not have kept quiet for four years after the order of the Appellate Authority, to come up with the above writ petition. Hence, even on the ground of delay and laches, the writ petition is liable to be thrown out. 14. The argument that the impugned order was passed under Section 4 (7) (c) of the Act, without noticing the omission of the said provision with effect from 15.09.2011 under Amendment Act No.21 of 2011, does not carry weight. This argument regarding omission of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment builders comes forward and submits the details of turnovers on which tax and interest thereon are payable as per the above referred memo, such builders have to first obtain Registration Certificate under the provisions of APVAT Act, 2005. 2. Thereafter, based on the details furnished by the said builders and if necessary after making any enquiry, the concerned assessing authorities shall assess such builders to quantify the tax and interest as per Govt.memo in ref.2nd cited, and have to issue specific proceeding as per the submissions made by them as they have not filed any returns earlier which can be deemed as assessed under Section 20 of the APVAT Act, 2005. 3. It is further informed that this memo was issued as one time measure to provide relief to such dealers who did not have Registration Certificate and not applied for composition. Thus the relief is available only for those transactions which occurred up to the date of issue of memo i.e. 17.06.2011. Any transaction occurring after 17.06.2011 will not come under the purview of the memo dt.17.06.2011. 18. As seen from paragraph-3 of the circular dated 22.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his intention to avail composition for all works specified in clause (a) undertaken by him. But, the pre-condition is that the notification by the VAT Dealer to the Prescribed Authority should be before the commencement of the execution of the work. 21. The petitioner did not file Form VAT 250 before commencement of the work. Therefore, we do not know how the petitioner claims the benefit of composition under Section 4 (7) (d) of the Act. As a matter of fact, the copies of the agreements entered into by the petitioner with the purchasers of semi finished buildings were produced before the Assessing Authority. They were all dated for the years 2010 and 2011. It is not the case of the petitioner even today that Form VAT 250 was field at any point of time either before 2010 or even thereafter. Therefore, the petitioner never exercised his option in a manner prescribed by Section 4 (7) (d) of the Act and hence, he cannot claim the benefit of composition. 22. The last contention of the petitioner is that a portion of the order of assessment is barred by limitation, as assessments under the VAT Act are monthly. But, the respondent has taken a stand tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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