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TMI Blog2020 (8) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the garnishee order issued by the 1st respondent on 16.03.2020 should be suspended, and the penalty order passed by the 1st respondent on 25.09.2019 in AO.No.43687 should also should be set aside. Maintainability of appeal - HELD THAT:- The petitioner had a remedy of appeal under sub-Section (1) of Section 31 of the Act against the penalty order dt.25.09.2019 passed by the 1st respondent; and the petitioner did not avail of the remedy at all; and the case of the petitioner does not fall within any of the exceptions to the rule permitting entertainment of writ petitions under Article 226 of the Constitution of India in spite of existence of an alternative remedy, and therefore we are not inclined to entertained the Writ Petition. Petition dismissed. - WP.No.12009 and 12015 of 2020 - - - Dated:- 21-8-2020 - HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO AND HONOURABLE SRI JUSTICE T.AMARNATH GOUD Petitioner Advocate : V. Ramesh Reddy Respondent Advocate: GP For Commercial Tax TG COMMON ORDER:(Per Hon ble Sri Justice M.S. Ramachandra Rao) 1. These two Writ Petitioners are filed by the same petitioner against the Commercial Tax Department of the State of T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posit 12.5% of the disputed tax as per proviso (2) of Section 31(1) of the Act, did not do so on the ground that already 50% of the earlier disputed tax had been deposited by it before the Tribunal in the earlier round of litigation. 11. The 4th respondent rejected the appeal vide. ADC order No.445 dt.29.02.2020 on the ground that the petitioner, when it filed the appeal before him, is required to furnish proof of payment of prescribed amount as per the proviso (1) to Section 31(1) of the Act, but in the papers filed along with the appeal by the petitioner on 03.10.2019, petitioner had failed to furnish proof of payment of 12.5% of the difference of tax assessed by the authority and the tax admitted by them; that notice was issued to the petitioner to furnish said proof and opportunity for personal hearing was also given, but the petitioner did not file any representation. 12. The 4th respondent relied on the judgment of the Supreme Court in M/s. S.E. Graphites Private Limited v. State of Telangana Others Civil Appeal No.7574 of 2014 Batch dt.10.07.2019 wherein the Supreme Court had held that though it is open to the assessee to file an appeal within the statutory per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailing the order AO.No.43687 dt.25.09.2019 levying penalty on the petitioner, WP.No.12009 of 2020 is filed by the petitioner. Contentions of the petitioner in WP.No.12015 of 2020 20. In regard to WP.No.12015 of 2020, wherein the order dt.29.02.2020 of the 4th respondent rejecting the appeal filed by the petitioner against the order dt.03.09.2019 passed by the 1st respondent is challenged, it is the contention of the petitioner that: a) the 2nd proviso to Section 31(1) of the Act obligates the petitioner to deposit 12.5% of the disputed tax for admission of the appeal; b) without noticing the fact that already 50% of the disputed tax had already been paid while filing the appeal before the Tribunal in the 1st round of litigation, the appeal was rejected by the 4th respondent; c) that the 4th respondent should have taken note of the net credit carried forward amount of ₹ 12,75,51,300/- and ought to have adjusted the 12.5% of the disputed tax, amounting to ₹ 20,36,350/-; and d) the petitioner therefore need not have to deposit the 12.5% of the disputed tax while filing the appeal before the 4th respondent. Consideration by the Court RE: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is accordingly dismissed. Contentions of the petitioner in WP.No.12009 of 2020 31. Coming to WP.No.12009 of 2020, where the petitioner has assailed the assessment order No.43687 dt.25.09.2019 levying penalty of ₹ 40,72,699/- on the petitioner as a consequence to the re-assessment order dt.03.09.2019 passed by the 1st respondent, the principal contention of the petitioner is that the order imposing penalty was barred by limitation and that the petitioner was under an impression that no appeal need to be filed and therefore it had not chosen to file any appeal against the said order. 32. It is contended that by the time petitioner realized that an appeal needs to be filed, the limitation period of 30 days prescribed for filing the appeal under sub-Section (1) of Section 31 of the Act had expired. 33. Petitioner contends that originally the proviso(1) to sub-Section (1) of Section 31 of the Act enabled the 1st appellate authority to admit the appeal by condoning the delay of further period of 30 days in addition to the initial period of 30 days, provided, sufficient cause was shown for condoning the delay, but later by Act 26 of 2017, the 1st proviso was omit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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