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TMI Blog2022 (11) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 08.05.2009, which came into effect from 01.05.2009, which is referred to in the affidavit filed in support of the Writ Petition, would show that, if the Deputy Commercial Tax Officer is having territorial jurisdiction over the dealer, he can deal with the case of the dealer irrespective of the fact whether the original order under Appeal or Revision order has been passed by him or not - the argument of the learned Counsel for the Petitioner that the first Respondent has assessed the case of the Petitioner without having territorial jurisdiction, cannot be accepted, when it is a fact that the Petitioner also falls within the territorial jurisdiction of the first Respondent. Whether the findings given by the Assessing Authority vis- -vis finding given by the Appellate Authority are correct? - HELD THAT:- The purchases made prior to declaration of VAT 250 and the sale made [apartments], the Appellate Authority found that the method adopted in levying tax is totally incorrect. The Appellate Authority categorically held that, when the Petitioner has opted for Composition Scheme and not claimed ITC, then the Assessing Authority has to levy tax under Rule 17(4) of the VAT Act. Hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n from the Deputy Commissioner (CT), passed Assessment Order, dated 06.05.2019, assessing the Petitioner to pay tax at the rate of Rs.19,55,785/-. (iv) Aggrieved by the same, the Petitioner preferred an Appeal under Section 31 of the VAT Act, vide Appeal No.16/2019-20 (ATP), before the Appellate Deputy Commissioner (CT), Tirupathi. On 22.10.2020, the said Appeal was disposed of setting aside the Assessment Order passed by the first Respondent and consequently remanded the matter to the concerned Assessing Authority. Challenging the same, the present Writ Petition came to be filed mainly on two grounds; firstly the Order passed by the first Respondent was without jurisdiction as he is not the Officer having territorial jurisdiction over the dealer, and secondly - though the Appellate Authority gave a positive finding stating that the Assessing Authority has levied tax on the material purchased by the Appellant by adding profit, which is wrong on his part, still on remand, the Assessing Authority passed the Order without taking into consideration the findings given by the Appellate Authority while remanding the matter back, which would amount to double taxation. 3) (i) Sri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier to 2015, but the same was used for construction of building and after completion of the same, it was sold by paying tax. Therefore, the finding given by the Assessing Authority that material purchased prior to Composition Scheme is liable to be taxed, is incorrect. 6) The point that arises for consideration is:- (i) Whether the first Respondent was right in passing the Assessment Order? (ii) Whether the Assessing Authority was justified in giving the same findings, which were set-aside by the Appellate Authority? 7) In order to appreciate the same, it would be useful to refer to few provisions of law. 8) Clause (a) of Section 4(7)(d) of VAT Act states that, every dealer executing works contracts shall pay tax on the value of goods at the time of incorporation of such goods in the works executed at the rates applicable to the goods under the Act. Provided that where accounts are not maintained to determine the correct value of goods at the time of incorporation, such dealer shall pay tax at the rate specified in Schedule-V on the total consideration received or receivable subject to such deductions as may be prescribed. 9) Section 4(7)(d) of VA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of construction and development activities at his apartments and by selling the apartments to a tune of Rs.10,00,000/-. Having regard to the filing of Form VAT 250 and opted for Composition Scheme by filing VAT 250, the Petitioner would come under the purview of Section 4(7)(d) and Rule 17(4) of VAT Act. 13) The claim of the Petitioner in the Appeal before the Deputy Commissioner Tax Officer, is that, there is no scope for levy of tax on goods, but tax is liable on gross construction received or receivable on sale of apartment, as per rate of tax prescribed under Rule 17(4) of VAT Act. Having regard to the plea taken and taking into consideration the provisions of law and the goods purchased for construction being prior to filing of VAT 250, which was being assessed to tax @ 3,08,994/-, the Appellate Authority passed the following Order: From the above it is clear that, part period of assessment was barred by time limitation, the assessing authority has levied a tax on material purchased by the appellant by adding profit, this is totally wrong on the part of the assessing authority. The appellant is a builder doing business in construction of apartments, when the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner never raised any objection with regard to the jurisdiction of the said authority in passing the said Order. Even before the Appellate Authority, the jurisdiction of the Assessing Authority was not questioned. Having subjected itself to the jurisdiction of the first Respondent, it may not be proper for the Petitioner to question the jurisdiction in the second round of litigation. 17) Be that as it may, a reading of Rule 59(1) would indicate that, against any Order passed by the Appellate Authorities and Revision Authorities under Sections 31, 32, 33, 34 and 35 of the VAT Act, the Assistant Commissioner, Commercial Tax Officer or the Deputy Commercial Tax Officer, as the case may be, having territorial jurisdiction over the dealer, is competent to pass the order, irrespective of the fact whether the original Order under Appeal or Revision has been passed by him or not. It would be appropriate to extract Rule 59(1), which is as under: (1) Powers (2) Authority (3) Sec./ Rule (vii) Proceedings to be issued in consequence to the orders, passed by different Appellate and Revision Authorities un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction over the dealer, he can deal with the case of the dealer irrespective of the fact whether the original order under Appeal or Revision order has been passed by him or not. Therefore, the argument of the learned Counsel for the Petitioner that, it is only the second Respondent, who has got the power to assess the case of the dealer/Petitioner, may not be correct. Apart from that, as urged by the learned Government Pleader for Commercial Taxes, no prejudice is caused to the Petitioner whether it is assessed by the second Respondent or first Respondent or by Assistant Commissioner or by Commercial Tax Officer, since an Appeal against the Order passed by any of the authorities would only lie before the appellate authority and, there is no inter-se appeal to the Officer referred to in the above G.O. 23) Having regard to the above, the argument of the learned Counsel for the Petitioner that the first Respondent has assessed the case of the Petitioner without having territorial jurisdiction, cannot be accepted, when it is a fact that the Petitioner also falls within the territorial jurisdiction of the first Respondent. 24) The second issue is, as to whether the findings given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affording proper opportunity to the appellant then pass orders as deemed fit as per the provisions of APVAT Act and Rules. 27) A reading of the above Order makes it clear that, the purchases made prior to declaration of VAT 250 and the sale made [apartments], the Appellate Authority found that the method adopted in levying tax is totally incorrect. The Appellate Authority categorically held that, when the Petitioner has opted for Composition Scheme and not claimed ITC, then the Assessing Authority has to levy tax under Rule 17(4) of the VAT Act. Having said so, the Appellate Authority further said that the Assessing Authority, without verifying the records properly, levied tax on purchases also, which is against the spirit of VAT Act and, accordingly, remanded the matter back. 28) On remand, the Assessing Authority confirmed the Order passed by him earlier. The operative portion of the Order, reads as under: On the keen observations of dealers contentions, the above contentions are not tenable because the dealer failed to establish the purchases relating to before filing of VAT 250 period and purchases made out of state which are not reflected in returns and books of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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