Andhra Pradesh High Court - Amravati
M/S. Sri Sai Ganga Educational Academy vs Assistant Commissioner St on 26 July, 2019
Author: J. Uma Devi
Bench: J. Uma Devi
THE HONOURABLE SRI JUSTICE M. SEETHARAMA MURTI
AND
THE HONOURABLE MS. JUSTICE J.UMA DEVI
WRIT PETITION No.9846 of 2019
ORDER:(Per the Honourable Sri Justice M.Seetharama Murti) This writ petition, under Article 226 of the Constitution of India, is filed by the petitioner seeking verbatim the following relief:
"...to issue an appropriate Writ, Order or Direction, more particularly, in the nature of MANDAMUS holding that the impugned Assessment Order passed by the First Respondent vide Order no.159374, dated 20.05.2019, for the Tax Period July, 2017 to June, 2018, under the SGST Act, 2017, is arbitrary, capricious, erroneous, violative of the principles of natural justice, contrary to law, facts and illegal and consequently set aside the same and pass such other order or orders...."
2. We have heard the submissions of learned counsel for the petitioner and of learned standing counsel for Commercial Taxes appearing for the respondents 1 and 2. We have perused the material record.
3. The facts discernible from the submissions and the pleadings, in brief, are as follows:
'The petitioner is an educational society registered under the Andhra Pradesh Societies Registration Act, 2001, vide registration No.389/2017, dated 16.10.2017. It is engaged in providing coaching services to the students, who are intending to appear for TET and DSC exams in Andhra Pradesh. The first respondent, on authorization from the Joint Commissioner of State Tax, conducted inspection, on 28.06.2018, and searched the premises of the petitioner and seized all the books and records. A show cause notice was issued by the first respondent, on 01.08.2018, proposing to impose tax at 9% under the Central Goods and Services Tax Act, 2017, and 2 MSRM,J & JUD,J W.P.No.9846 of 2019 26.07.2019 the Andhra Pradesh Goods and Services Tax Act, 2017, ('CGST and SGST Acts' for brevity) for the period from July, 2017 to June, 2018 on a total turnover mentioned therein arrived at by him on the basis of the application forms received from prospective students. Objections were filed by the petitioner, on 04.02.2019, 19.02.2019 and 22.02.2019, explaining that the total receipts arrived at by the first respondent are not correct and by mentioning the correct figure and requesting to adopt the correct figure.
Later, the impugned assessment order came to be passed by the first respondent, on 20.05.2019, confirming the total turnover proposed by him in the show cause notice. Aggrieved thereof, the present writ petition is filed.'
4. The specific case of the petitioner is that the impugned assessment order came to be passed on the grounds which are not mentioned in the show cause notice. Having drawn our attention to the impugned assessment order, particularly, to paragraph 8, wherein certain figures are shown in a table and also to the figures in the said table, which are made the basis for the impugned assessment order, the petitioner contends that since the impugned assessment order came to be passed based on the grounds not mentioned in the show cause notice, the same is unsustainable. In support of the said contention reliance is placed on the decision in Sumo Foods Private Limited, Hyderabad v. Commercial Tax Officer, Rajendra Nagar Circle, Hyderabad1.
5. The learned standing counsel for Commercial Taxes appearing for the respondents 1 and 2 submitted that the impugned assessment order, in the facts and circumstances of the case, may be directed to be treated as a show cause notice and the first respondent may be directed to pass orders afresh, 1 (2006) 43 APSTJ 75 (AP) 3 MSRM,J & JUD,J W.P.No.9846 of 2019 26.07.2019 after affording an opportunity to the petitioner to submit the detailed objections, after return of the books and records seized.
6. Having regard to the facts and circumstances of the case we are satisfied that the impugned assessment order came to be passed on the grounds that are not mentioned in the show cause notice. Hence, we find that the said order is liable to be set aside.
7. In the result, the writ petition is disposed of with the following directions:
The parties are directed to treat the impugned assessment order as show cause notice. The first respondent is directed to return the books and records seized to the petitioner, under proper acknowledgment, within two weeks from the date of receipt of a copy of this order, to enable the petitioner to submit detailed objections. On such return of the books and records, the petitioner shall file detailed objections within three weeks thereafter. Afterwards, the first respondent shall pass appropriate orders afresh, after affording an opportunity of personal hearing to the petitioner, nonetheless, in strict accordance with the procedure established by law. The necessary exercise of passing orders afresh shall be completed within two months after expiry of the time frames first and second mentioned supra.
As a sequel, pending miscellaneous petitions, if any, shall stand dismissed. No order as to costs.
_________________________ M. SEETHARAMA MURTI, J _____________ J.UMA DEVI, J 26th July, 2019 ghn