Andhra HC (Pre-Telangana)
Balaji Boiled Rice Mill And Ors. vs Commercial Tax Officer, Khammam And ... on 18 November, 1987
Equivalent citations: [1988]71STC86(AP)
JUDGMENT Y.V. Anjaneyulu, J.
1. These three writ petitions filed by the same petitioner, M/s. Balaji Boiled Rice Mill, Sudimalla, Khammam District, raise common questions. It will, therefore, be convenient to dispose of the writ petitions together.
2. Writ Petition No. 2716 of 1983 relates to the sales tax assessment year 1979-80 and the prayer in the writ petition is that a writ of prohibition be issued to the Commercial Tax Officer, Khammam, respondent No. 1 herein, from reopening the assessment and making a fresh assessment for the year 1979-80 pursuant to the alleged direction issued by the Deputy Commissioner, Commercial Taxes, Warangal, respondent No. 2 herein.
3. Writ Petition No. 2718 of 1983 also relates to the sales tax assessment year 1980-81 and the prayer is identical to the one in W.P. No. 2716 of 1983.
4. Writ Petition No. 5174 of 1983 relates to the sales tax assessment year 1981-82 and the prayer is to quash the assessment order dated 31st May, 1983 passed by the Commercial Tax Officer, Khammam, respondent No. 1 herein.
5. The petitioner is a partnership firm carrying on business in running a boiled rice mill. The rice mill is situate at Sudimalla in a scheduled and notified area. For the sales tax assessment year 1979-80, a final assessment was made on 2nd January, 1981 wherein the petitioner's claim for exemption of tax on the purchase of paddy to the tune of Rs. 1,01,35,896 was accepted. Similarly, for the assessment year 1980-81 a final assessment was completed on 22nd July, 1981 wherein the petitioner's claim for exemption of purchase tax on paddy of the value of Rs. 1,18,94,920 was accepted.
6. The Deputy Commissioner (Commercial Taxes), respondent No. 2 herein, it appears, exercised the power of revision in relation to these two assessments as it appeared to him that exemption given regarding purchase tax was improper. It appears the second respondent set aside the assessments made by the first respondent and directed that fresh assessments must be made for these two years refusing to grant exemption. So far as the assessment year 1981-82 is concerned a final assessment was made on 31st May, 1983 wherein the petitioner's claim for exemption from payment of purchase tax on paddy purchased of the value of Rs. 1,26,69,591 was rejected. Obviously the rejection of the claim for exemption for the year 1981-82 followed the view taken by the Deputy Commissioner while refusing the assessments for the years 1979-80 and 1980-81.
7. Following the revisional orders passed by the Deputy Commissioner, the first respondent issued notices on 8th September, 1982 for the assessment year 1979-80, and on 31st August, 1982 for the assessment year 1980-81 requiring the petitioner to show cause why a fresh assessment should not be made for these two years denying the claim for exemption from payment of purchase tax which was allowed in the original assessments. In the show cause notice for each of the two years, reference was made to the decision of the Deputy Commissioner, Warangal, respondent No. 2, dated 15th May, 1982 that the petitioner was not entitled to claim such exemption. As soon as these two show cause notices were received by the petitioner for the assessment years 1979-80 and 1980-81 writ petitions were filed to prohibit the making of fresh assessments. As soon as the final assessment for 1981-82 was received, a writ petition was filed for quashing of that assessment and direct exemption of the paddy from the payment of purchase tax.
8. In the affidavit accompanying the writ petitions for the assessment years 1979-80 and 1980-81, the main ground of attack against the making of a fresh assessment by the first respondent is that the petitioner was not aware of any such revisional proceedings by the Deputy Commissioner. This is what is stated in the affidavit filed by the petitioner :
"........ The show cause notices in question are said to be a sequel to the revisional orders passed by the second respondent on 15th May, 1982 under section 20(2) of the Andhra Pradesh General Sales Tax Act. The petitioner is not aware of any such revisional proceedings. No notice was ever given to the petitioner by the Deputy Commissioner (second respondent). The so-called orders passed in revision were never communicated to the petitioner. The Deputy Commissioner could not have set aside the assessment orders to the detriment of the petitioner without giving adequate opportunity to make its representation. The first respondent is not therefore justified in acting in pursuance of such order passed by the second respondent which must be considered to be non est in the eye of law." (para 7) A counter was filed by the Commercial Tax Officer, the first respondent, for both the assessment years 1979-80 and 1980-81. No counter was filed by the second respondent, the Deputy Commissioner (CT), who reportedly passed the orders in revision under section 20(2) of the Andhra Pradesh General Sales Tax Act (for short, "the Act"). In the counter filed by the first respondent there is no denial of the allegation made by the petitioner that the petitioner was not aware of any order passed by the second respondent in revision and if such an order was passed behind the back of the petitioner it violated the principles of natural justice.
9. Learned counsel for the petitioner, Sri P. Venkatram Reddy, submitted that so far as the proposal to make fresh assessments for the years 1979-80 and 1980-81 are concerned, it is not open to the first respondent to make any fresh assessments as the order allegedly passed by the second respondent is invalid in the absence of any notice to the petitioner. We are inclined to accept the submission of the learned counsel. We quote below sub-section (4) of section 20 of the Act :
"(4) No order shall be passed under sub-section (1) or sub-section (2) enhancing any assessment unless an opportunity has been given to the assessee to show cause against the proposed enhancement."
Now the revisional order of the Deputy Commissioner under section 20(2) of the Act to the effect that the petitioner is not entitled to claim exemption of purchase tax in respect of paddy purchased undoubtedly has the effect of enhancing the assessment already made. Clearly, therefore, the Deputy Commissioner could not have passed an order without putting the petitioner on notice and giving him an opportunity to show cause against the proposed enhancement. The record of the Deputy Commissioner is not produced before the court and the learned Government Pleader has not been able to state that the order under section 20(2) of the Act was passed by the Deputy Commissioner after due notice to the petitioner. In these circumstances we have no alternative but to accept the submission of the learned counsel for the petitioner that the order under section 20(2) of the Act was passed by the second respondent without putting him on notice, as required under section 20(4) of the Act, and consequently the first respond has no right to make a fresh assessment for the years 1979-80 and 1980-81. We accordingly quash the reassessment proceedings initiated by respondent No. 1 for the years 1979-80 and 1980-81, as also the proceedings of respondent No. 2 in R.C. No. A8/2384/82 dated 15th May, 1982 for 1980-81 assessment and No. A8/2400/82 dated 15th May, 1982 for 1979-80 assessment.
10. As regards Writ Petition No. 5174 of 1983 for the assessment year 1981-82, we do not wish to go into the question raised by the petitioner, as an appeal is provided against the assessment made. The petitioner could have filed an appeal before the appropriate appellate authority and sought appropriate relief concerning the levy of purchase tax on paddy purchased. In the circumstances, we dismiss the petition for the assessment year 1981-82 with liberty to the petitioner to file an appeal before the appropriate appellate authority within four weeks from today. If such an appeal is filed, the appellate authority will entertain the same without raising the plea of limitation and dispose of the appeal in accordance with law.
11. The writ petitions are accordingly disposed of. No costs. Advocate's fee Rs. 150 in each.
12. Writ petitions disposed of accordingly.