Andhra Pradesh High Court - Amravati
Mytrah Vayu Indravathi Private ... vs The State Of Andhra Pradesh, on 21 December, 2020
Author: C.Praveen Kumar
Bench: Cheekati Manavendranath Roy, R Raghunandan Rao, C.Praveen Kumar
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HONOURABLE SRI JUSTICE R.RAGHUNANDAN RAO
WRIT PETITION No.23539 OF 2020
ORDER:- (Per Hon'ble Sri Justice C.Praveen Kumar) The order of assessment, passed by the Assistant Commissioner (CT) LTU, Office of the Deputy Commissioner (CT), Kurnool - second respondent herein, vide proceedings No.TIN:37782424079, dated 31.10.2020, is under challenge in the present Writ Petition.
2. Heard Sri D.Prakash Reddy, learned Senior Counsel, representing Sri Avinash Desai, learned counsel for the petitioner on record, and Sri Y.N.Vivekananda, learned Government Pleader for Commercial Taxes appearing for the respondents, apart from perusing the entire material available on record.
3. Learned Senior Counsel contends that the impugned order is highly erroneous, contrary to law and violative of the principles of natural justice. He further submits that having regard to the variation of the particulars in the order of assessment from the particulars shown in the show cause notice, the impugned action is liable to be treated as violative of the principles of natural justice.
4. Per contra, learned Government Pleader, totally supporting the impugned order of assessment, submits that there is absolutely no error nor there exists any infirmity in the impugned action and, in the absence of the same, the order of assessment, which is impugned in the present Writ Petition, is not amenable for 2 any judicial review under Article 226 of the Constitution of India. It is also the submission of the learned Government Pleader that there cannot be any complaint of violation of the principles of natural justice as the impugned order of assessment was preceded by a show cause notice and opportunity to the assessee.
5. The second respondent herein, vide proceedings No.TIN:37782424079, dated 12.03.2020, issued a show cause notice proposing the payments to be made by the assessee in the following manner:
S. Commodity Form Amount Rate of Effectiv Tax Amount No Type Tax e Rate C/F of Tax (Rate of Form Tax-
Concess ional rate of tax 1 Wind C 5163900000 5 3 154917000 Power equipmen t and accessori es
6. In response to the show cause notice, dated 12.03.2020, petitioner herein submitted its objections on 29.05.2020. In the explanation, dated 29.05.2020, petitioner herein also made a request for personal hearing. Thereafter, the assessing authority, vide the impugned order of assessment, arrived at Rs.48,04,68,750/-.
7. According to the learned Senior Counsel, since there is abnormal variation between the figures shown in the show cause notice and the order of assessment, it needs to be construed that there was no proper show cause notice and the impugned action needs to be treated as violative of the principles of natural justice and Article 14 of the Constitution of India. It is also the 3 submission of the learned Senior Counsel that, before passing the impugned order of assessment, though an opportunity of hearing was afforded to the petitioner herein, he could not attend the hearing on 06.06.2020 due to Covid-19 pandemic and sought for an adjournment vide email, dated 12.06.2020.
8. In order to verify and adjudicate the said issue raised by the learned Senior Counsel, it is essential to verify the figures shown in the show cause notice and the impugned assessment order. The figures mentioned in the show cause notice, dated 12.03.2020, are as follows:
S. Commodi Form Amount Rate Effectiv Tax Amount N ty Type of Tax e Rate o C/F of Tax Form (Rate of Tax-
Concess ional rate of tax 1 Wind C 5163900000 5 3 154917000 Power equipmen t and accessori es
9. The particulars of the amount, mentioned in the impugned order of assessment, read as follows:
S.No. Goods purchased Value of the goods Entry tax Entry tax by the dealers as per the invoices leviable @ tax proposed and from out of the rate levied. state
1. Transformers 82500000 12.5% 10312500 (Notified goods as per G.O.Ms.No.955 Revenue (CTII) dated 11.05.2005)
2. Generators 3761250000 12.5% 470156250 (Notified goods as per G.O.Ms.No.955 Revenue (CTII) dated 11.05.2005) Total 480468750 4 The following table demonstrates the drastic change of heads on which entry tax was levied:
Taxation Show Cause Revised Impugned Heads Notice (16.07.2020) Order (12.03.2020) (31.10.2020) Wind Power 15,49,17,000/- -- --
Equipment {3% of
and 516,39,00,000/-
accessories
Rotar Blade -- 2,86,50,000/- --
{4% of 71,62,50,000}
Tower -- 7,54,87,500/- --
{12.5% of 60,39,00,000}
Transformers -- 70,12,500/- 1,03,12,500/-
{8.5% of 8,25,00,000/-} {12.5% of
8,25,00,000/-}
Other -- 31,97,06,250/- --
Components {8.5% of
of Wind Mill 376,12,50,000/-}
i.e., Nacelle,
Hub and
Controller
Generators -- -- 47,01,56,250/-
{12.5% of
376,12,50,000}
Total Entry 15,49,17,000/- 43,08,56,250/- 48,04,68,750/-
Tax
10. A perusal of the above figures demonstrates, in clear and vivid terms, that there is a lot of variation between the amounts proposed in the show cause notice and the amounts indicated in the impugned assessment order. Therefore, necessarily, it needs to be construed and hold that the assessing authority did not issue proper show cause notice to the assessee before passing the order of assessment and, in the considered opinion of this Court, the said action on the part of the assessing authority is a patent violation of the principles of natural justice and, on this ground alone, the matter is liable to go back to the assessing authority for taking action as per law and by adhering to the principles of natural justice. Though it is contended by the learned Government Pleader that having regard to the admissions made by the petitioner in its explanations, on the aspect of payment of tax, it is 5 not open for the petitioner herein to contend that there is violation of the principles of natural justice, as observed supra, there is admittedly variation in the amounts mentioned in the show cause notice and the final assessment order. Therefore, the contention of the learned Government Pleader, as mentioned supra, is not tenable.
11. Accordingly, the Writ Petition is allowed, setting aside the order of assessment passed by the Assistant Commissioner (CT) LTU, Office of the Deputy Commissioner (CT), Kurnool - second respondent herein, vide proceedings No.TIN:37782424079, dated 31.10.2020. However, it is open for the assessing authority to issue a fresh show cause notice, indicating the correct amounts, and to take action in accordance with law. It is also made clear that before passing any order, fixing the liability, opportunity of hearing should be afforded to the petitioner herein. There shall be no order as to costs.
Miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR __________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 21.12.2020 AMD 6 41 THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE R.RAGHUNANDAN RAO WRIT PETITION No.23539 OF 2020 Date : 21.12.2020 AMD