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TMI Blog2021 (11) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... e valid. The impugned proceedings initiated by invoking the provisions of Section 27 of VAT Act and issuance of notices in Form IV and V under RR Act, attaching the properties of the petitioner by showing the arrears of tax due for the period 2009-10 and 2010-11, cannot be sustained - the impugned notice of attachment issued in Form V dated 20.02.2018 for recovery of a sum of ₹ 5,59,58,758/- is hereby set aside. Petition allowed. - W.P. NO. 3703 OF 2020 - - - Dated:- 28-9-2021 - HON BLE THE ACTING CHIEF JUSTICE SRI M.S. RAMACHANDRA RAO AND HON BLE SRI JUSTICE T. VINOD KUMAR Petitioner Advocate : Gopala Rao Amancharla V Respondent Advocate : GP For Commercial Tax TG Order : (per Hon ble Sri Justice T. Vinod Kumar) This Writ Petition is filed by the petitioner questioning the action of respondents in not providing copies of assessment order for the years 2005-06, 2008-09, 2009-10, and 2010-11 inspite of making several requests, and for not lifting the attachment order dt. 03.02.2012 and revised attachment order dt. 20.02.2018 issued in Form V invoking the provisions of Revenue Recovery Act, 1864 (for short the RR Act ), pursuant to the powers confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notices or the assessment orders could not have been served on it by the respondent during the said period; thus, it is contended that the petitioner had approached the respondent and sought for providing copies of the assessment orders to enable it to verify the same and make necessary arrangements to settle the arrears with the respondent by submitting representations dt. 18.06.2018, 16.07.2018, 23.08.2018, 24.10.2018, 05.03.2019, 18.06.2019 and 04.11.2019. 7. The petitioner would further contend that, despite the petitioner submitting numerous requests for furnishing copies of assessment orders and also the date of service of such orders passed on it, the respondents are maintaining stoic silence and are neither providing the copies of assessment orders said to have been passed nor furnishing certified copies thereof. Thus, without affecting the service of the assessment orders, as provided under the VAT Act, the respondent cannot claim the tax shown therein as arrears, and resort cannot be made to the provisions of RR Act by attaching the properties of the petitioner company. 8. Counter affidavit has been filed by the 1st Respondent. 9. By the counter affidavit, the 1s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponse from the petitioner nor tax arrears shown as due are paid, the 2nd respondent issued demand notice in Form IV dt.12.09.2011 under the RR Act, being the competent authority to exercise powers thereunder, before attaching the properties of the petitioner; and that as the petitioner did not make the payment of amount shown as due in Form IV notice, nor filed any response thereto, the 2nd respondent issued notice of attachment dt. 03.02.2012 in Form V under RR Act. It is also claimed that even at that stage, the petitioner did not approach the respondents and sought for the basis for issuing the above said proceeding and on the other hand remained silent. 12. It is also contended by the respondent that as the matter stood thus, it came to the knowledge of the respondent that the bankers of the petitioner viz., Canara bank had issued notification on 14.08.2011 bringing the immovable properties of the petitioner for sale in public auction to recover the loans extended to the petitioner. As per the provisions of Section 25 and 26 of VAT Act, the tax arrears have a priority over the dues of the bank and provides for first charge over the properties of the VAT dealer, the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove said property and served copy of the said notice on Sri Pankaj Agarwal and Neeraj Agarwal being the Directors of the company. 16. It is contended that upon the service of the said notice in Form V by the 2nd respondent, the petitioner for the first time submitted representation dt. 18.06.2018 for furnishing certified copies of assessment orders. Similar representations renewing the said request are stated to have been made on 24.10.2018 and 05.03.2019. However, it is contended that in none of the said representations, petitioner had claimed about the non-service of the assessment orders passed by the respondents and on the other hand claimed that the assessment orders are not available with us and our factory is closed long back and above orders are not traceable in our records. Thus, the respondents would contend that the request made by the petitioner for furnishing of copies of assessment orders passed, is an after thought, to thwart the proceeding initiated by the respondent for recovery of tax dues by resorting to attachment of the property, in accordance with law. 17. Further the respondents would contend that as the petitioner did not raise the plea of non-servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served,- (a) on a person being an individual other than in a representative capacity if,- (i) it is personally served on that person ; or (ii) it is left at the person s usual or last known place of residence or office or business in the State; or (iii) it is sent by registered post to such place of residence, office or business, or to the person s usual or last known address in the State; or (b) on any other person if,- (i) it is personally served on the nominated person ; or (ii) it is left at the registered office of the person or the person s address for service of notices under the Act; or (iii) it is left at or sent by registered post to any office or place of business of that person in the State; (iv) where it is returned unserved, if it is put on board in the office of local chamber of commerce or traders association. (2) The certificate of service signed by the person serving the notice shall be evidence of the facts stated therein. 23. From a reading of the above said Rule, it would be clear that an order passed by the respondent, in order to be considered as validly served, would have to be only in the manner prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order specifically. On the other hand, the petitioner has sought to contend about the authority of the 1st respondent in passing the said order consequent upon this Court setting aside the order dated 07.07.2009 in W.P. No. 27331 of 2009 , permitting the petitioner to file objections to the show cause notice issued. 28. Thus, the service of the order passed for the period 2005-06 to 2008-09 in our considered view cannot be called in question. 29. Though the petitioner sought to contend that the 1st respondent lacked the authority to pass the said assessment order, we do not accept this contention since, the earlier order of assessment dated 07.07.2009 was passed by another jurisdictional authority who was authorized by the authority prescribed under Rule 59 of Rules, in view of amendment to Rule 59 brought about by G.O. Ms. No. 503, Rev (CT-II) Dept, dt. 08.05.2009, w.e.f. 01.05.2009, (whereby the authorities mentioned therein having territorial jurisdiction over the dealer were conferred powers to issue proceedings irrespective of the fact whether the original order was passed by him or not.) In the facts of the case, despite service of the assessment order on 31.03.2011, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing invited an interim order which has not been complied till date, the petitioner has not come to the Court with clean hands, the relevant assessment records are not readily traceable in the office due to efflux of time. However, best efforts are being made to trace the assessment records for the years in question including requesting my predecessor officers who held the office in 1st respondent to help in tracing the above assessment files so as to furnish again the copies of assessment orders to the petitioner. Therefore, non furnishing of assessment orders as pleaded is neither deliberate nor wanton but due to the circumstances as submitted the above. 32. From the above statement made by the respondent in the counter affidavit, it is clear that the respondent does not have record evidencing the service of assessment order on the petitioner for the period 2009-10 and 2010-11 by any of the modes prescribed under Rule 64(1)(b). We are at a loss to fathom the above said statement made by the 1st respondent as to non traceability of record claiming to be one and half decade old, as not much time has passed by much less the period of one and half decade as being claimed. Only pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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