M/S Shaik Enterprises, v. The State Of Andhra Pradesh,

THE HON'BLE SRI JUSTICE V. RAMASUBRAMANIAN AND THE HON'BLE MS. JUSTICE J. UMA DEVI WRIT PETITION No. 38824 of 2016 ORDER: (Per VRS,J) The petitioner, who is a registered dealer under the Andhra Pradesh Value Added Tax Act, 2005, has come up with the present writ petition, challenging a notice of demand in relation to the years 2009-2010 and 2010-2011.

2.

Heard Mr. N. Aswartha Narayana, learned counsel for the petitioner. Mr. S. Suribabu, learned special standing counsel for Commercial Taxes (AP), takes notice for the respondents. 3.

The impugned notice demands a sum of Rs.99,070/- from the petitioner for the year 2009-2010 and a sum of Rs.1,28,526/- for the year 2010-2011. According to the petitioner, no orders of assessment were passed in relation to these years.

4.

The learned special standing counsel produced the records. According to the Assessing Officer, an order, dated 11.12.2013, was passed determining the tax in a sum of Rs.99,070/- in relation to the year 2009-2010. Another order, dated 15.12.2014, was passed

determining the tax in a sum of Rs.1,28,526/- in relation to the year 2010-2011.

5.

But, the alleged orders of assessment show that they were not, in fact, the orders of assessment. They were either quasi show-causenotices or half-hearted assessment orders. They do not fall under either of the two categories. Since the orders, dated 11.12.2013 and 15.12.2014, are identically worded, the last three paragraphs of one of these orders are extracted as follows:

"It is therefore proposed to assess the dealer on the under declared to tax of Rs.128526/- under the powers vested in me under Section 21 of the APVAT Act, 2005 read with Rule 25 of the APVAT Act and Rule.

A show cause notice in Form VAT 305A (Dt:21-07-2014) proposing assessment as detailed above was sent by regd. post on 02-08-2014 to the dealer calling for objections, since the dealer has not filed any objections. If you have any objections to the assessment proposed above, you are requested to appeal against this orders lies to the Deputy Commissioner (CT), Kurnool, within 30 days from the receipt of this order."

6.

It is seen from the above, no assessment was actually made, but only objections were called. Though in the penultimate paragraph it is stated that the dealer did not file objections, an assessment did not follow thereafter. On the contrary, the petitioner was advised to file an appeal. If these orders are to be construed as assessment orders,

they will defeat the very purposes of the Act. Therefore, the demand made under the notice impugned in the writ petition, is not in tune with the statutory provisions. It is not based upon any valid assessment order passed.

7.

Hence, the Writ Petition is allowed and the demand is set aside. The petitioner is directed to file objections to the show-cause-notices for the years 2009-2010 and 2010-2011, within 15 days from the date of receipt of a copy of this order. Thereafter, the Assessing Officer shall fix a date for personal hearing. On the said date, the petitioner shall appear without fail, along with necessary documents. Thereafter, the Assessing Officer shall pass orders of assessment, in accordance with the statutory provisions.

Consequently, miscellaneous petitions if any pending in the writ petition shall stand dismissed. No order as to costs. __________________________ V. RAMASUBRAMANIAN, J ______________ J. UMA DEVI, J.

2nd February, 2017 cbs

THE HON'BLE SRI JUSTICE V. RAMASUBRAMANIAN  AND THE HON'BLE MS. JUSTICE J. UMA DEVI Writ Petition No. 38824 of 2016 (allowed) 2nd February, 2017 cbs