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TMI Blog2021 (6) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... tted the appeal back to the Assessing Authority with a direction to verify the veracity of the documents that will be produced by the appellant before him and then pass fresh orders as per the provisions of APVAT Act, 2005 and the appellant shall produce the documentary evidence before the Assessing Authority covering the disputed turnover for verification as and when called for by him. It is clear from the appellate order that the Appellate Deputy Commissioner has fixed the rate of tax at 5% and remanded the matter only to verify the records to be produced by the appellant and to come to a conclusion with regard to actual turnover. Post remand scenario - HELD THAT:- Admittedly the 1st respondent issued notice dated 12.12.2017 calling the petitioner to produce relevant documents/information in support of their contentions within seven days from the date of receipt of the said notice. Having received the notice on 15.12.2017, the petitioner filed some record relating to purchases and trading account for the years 2013-14, 2014-15 and 2015-16 vide covering letter dated 27.12.2017 and has not filed further information. The impugned Assessment Order and Penalty Order is set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... virtually allowed the appeal by holding that the goods sold by the petitioner are taxable @ 5% falling under Entry No.102(2) of the IV Schedule to the A.P. VAT Act, 2005 and remanded the matter to the 1st respondent with a direction to verify the veracity of the documents that will be produced by the petitioner before him and then pass fresh orders as per the provisions of the Act. It was directed that the petitioner should produce documentary evidence before the Assessing Authority covering the disputed turnover for verification as and when called for by him. Incidentally, the appeal relating to the penalty was also remanded with the same observations. (d) Pursuant to the remand order, the 1st respondent issued notice dated 12.12.2017 calling for information and the petitioner submitted a letter dated 27.12.2017 along with necessary record such as sale invoices, purchase invoices and audited statement like balance sheet, profit and loss account etc., for the relevant period. Thereafter, the 1st respondent issued show cause notice dated 09.11.2020, proposing to impose tax on the said goods once again @ 14.5% by treating them as unclassified goods and called upon the petitioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e passed on 28.11.2020 confirming the proposals made in the show cause notice and levied tax for an amount of ₹ 3,54,847/-. Incidentally, a copy of the show cause notice dated 09.11.2020 was also marked to the personal address of the proprietor, which was admittedly served on the petitioner on 25.11.2020. Having received the same, the petitioner did not make any attempt either to file objections or seek the date of personal hearing adjourned by appearing before the authority on 27.11.2020. Thus, the petitioner was seeking to mislead this court by brandishing an order for cancellation of registration dated 30.04.2019 without actually filing in Court along with his writ petition or pleading the same in the writ petition, probably in a misconceived idea to show that he is no longer available in the principal place of business. However, as stated supra, the address of the petitioner shown in the cause title belies his claim. It is further contended that the Assessment Order is not contrary to the remand direction of the Appellate Deputy Commissioner as alleged. Hence, the petitioner failed to make out any case for him. The assertion of the petitioner that goods purchased and sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods sold by the writ petitioner are used exclusively for the fruit pulp industries and therefore they cannot be considered as unclassified goods and rather they fall under Entry No.102(2) of the IV Schedule to the A.P. VAT Act, 2005 and leviable @ 5%. Of course, the Appellate Authority has remanded the matter to the 1st respondent with a direction that the writ petitioner shall produce the relevant records with regard to the actual turnover and the fresh Assessment Orders have to be passed by the 1st respondent. Learned counsel emphasized that since the Appellate Authority has confirmed that the goods sold by the petitioner are exigible to tax @ 5% only, no further discussion and decision on the rate of tax applicable is necessary from the 1st respondent. What was only required was that the 1st respondent has to verify the records produced by the petitioner and arrive at the total turnover and levy the tax thereon @ 5%. Learned counsel further argued that the 1st respondent, pursuant to the Appellate Order, issued notice and the petitioner produced some records. Thereafter, again the 1st respondent issued show cause notice dated 09.11.2020, surprisingly, expressing the view that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment Order and thereafter the penalty order. He thus submitted that there was no legal flaw in the orders impugned and prayed to dismiss the writ petitions. 7. The point for consideration is whether there are merits in the writ petitions to allow. 8. We gave our anxious consideration to the respective submissions of either counsel. The admitted facts in these cases are that aggrieved by the initial Assessment Order No.29664, dated 30.07.2016 imposing tax on the sale of goods @ 14.5% for the tax period April, 2013 to January, 2016 and also against imposing of penalty vide Assessment Order No.48458, dated 31.12.2016, the petitioner filed appeals Nos.83/2017-18 (CTR) and 84/2017- 18 (CTR). 9. The Appellate Deputy Commissioner passed order dated 08.11.2017, a perusal of which shows that the Appellate Authority was convinced that the disputed goods sold by the appellant (writ petitioner) were used exclusively by the fruit pulp industries for the treatment of material i.e., fruits and food etc., and it cannot be considered as unclassified item, as they fall under Entry No.102 vide Sl.No.2 of the IV Schedule of the A.P. VAT Act, 2005. On discussion of several decisions on le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incipal place of business is concerned, according to the 1st respondent, it was served to the said address on 20.11.2020 vide postal track record consignment details, a copy of which is filed along with counter. It shows that the consignment No.RN434230352IN, Chittoor post office was delivered on 20.11.2020. The contention of the 1st respondent is that in spite of receiving the show cause notice, wherein the date of personal hearing was fixed as 27.11.2020 at 11:30 AM, the petitioner did not respond and having no other go the 1st respondent passed the impugned consequential Assessment Order dated 28.11.2020 treating that the machinery sold by the petitioner falls under unclassified goods in Schedule-V and levied tax @ 14.5%. (b) Whereas, the contention of the petitioner is that the show cause notice addressed to him was received by him on 25.11.2020, whereunder he was having time of seven days i.e., till 02.12.2020 to submit his objections, however, the impugned order came to be passed on 28.11.2020 itself by depriving opportunity to file objections. The petitioner too filed a copy of postal track record consignment sheet which shows the consignment No.RN434230366IN was delive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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