Andhra Pradesh High Court - Amravati
M/S. Kanthika Exports vs The Commercial Tax Officer, on 30 October, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, Cheekati Manavendranath Roy
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
W.P. No. 16718 of 2019
ORDER:(Per the Hon'ble Sri Justice C.Praveen Kumar)
1) The present Writ Petition came to be filed seeking issuance of a Writ of Mandamus or any other Writ or Order or Direction declaring the action of the 1st Respondent in passing the Assessment Order under the CST Act 1956 for the year 2014-2015, dated 31.01.2017, in a mechanical manner without granting any time to file objections to the proposed notice, dated 21.11.2016, or providing opportunity of hearing and also the inaction for not considering the request for reopen of assessment filed by the petitioner through letter, dated 02.05.2017, under Rule 12(7) read with Section 8(4)(a) and Rule 12(10) of CST (R&T) Rules read with 14-A (5-A) of the CST (AP) Rules of the CST Act 1956.
2) As seen from the averments made in the affidavit filed in support of the Writ Petition, the Petitioner herein is a registered dealer of the 1st Respondent under A.P. VAT Act 2005 and CST Act 1956, engaged in the business of processing of raw granite blocks for manufacturing and export sales of polished granite slabs. A final Assessment came to be made by the 1st Respondent under CST Act 1956 for the year 2014-15, on 31.01.2017. It is said that, higher tax has been levied in the absence of any supporting evidence for direct exports and statutory declarations as required under Section 5(3) of CST Act without granting any time to file the objections, determining the net turnover of Rs., 3,68,01,780/-. 2
3) After receipt of the Impugned Proceedings on 10.12.2016, the Petitioner submitted Direct Export documents, Form-C Form-H declarations along with proof of exports on 04.05.2016, with a request to revise the assessment proceedings, dated 31.01.2017, explaining the delay in filing the same.
4) The Petitioner pleads that the Judgment on the subject permits the Petitioner to rectify the omissions in the Impugned Proceedings. He also refers to Rule 60 of APVAT Rules read with Section 9(2) of the CST Act 1956 to show that "any authority prescribed, appellate or revising authority may at any time within four years from the date of any order passed by him rectify any clerical or arithmetical mistake apparent from the record". The meaning of "clerical" or "arithmetical" mistake came for consideration before the Hon'ble Apex Court, wherein, the Apex Court permitted to reopen the assessment basing on the documents filed subsequently.
5) It is said that the petitioner is selected for refund audit under the AP VAT Act for the tax period April 2013 to June 2017 by the 1st Respondent, who passed the proceedings of assessment declaring excess credit of Rs., 40,59,581/- in Form VAT305, dated 25.05.2019. While the request for revision is pending with the 1st Respondent, the proposed Notice, dated 19.08.2019, came to be issued for realization of the impugned demand for the year 2014-15 stating that action will be initiated under the Revenue Recovery Act and also proposed to take action under Section 29 and 25 of the APVAT Act 2005.
6) The learned Counsel for the Petitioner mainly submits that the said demand is not enforceable as the claim of exemption under 3 Section 5(3) of the CST Act 1956 on the strength of form H declarations is justifiable, in view of the Judgment of Consolidated Coffee Ltd., v. Coffee Board, Bangalore & other cases1.
7) Reiterating the grounds raised in the writ petition, the petitioner urges that it is a fit case for passing fresh order of assessment in accordance with law, after giving an opportunity to the Petitioner to file documents, more particularly, Form C and Form H declarations along with proof of exports.
8) As seen from the record, the Division Bench of this Court in Writ Petition No. 1466 of 2017, while dealing with an identical issue, namely, the failure of the 1st Respondent to take into account the "H" forms relating to export turnover, allowed the petition setting aside the impugned order and remitted back the matter to the 1st Respondent for fresh consideration. The court also directed the 1st Respondent to take into account the "H" forms also and pass a fresh order of assessment, in accordance with law.
9) Similarly, in Godrej Agrovet Ltd. v. Commercial Tax Officer, Eluru2, the Court directed the petitioner to produce "C" forms within a period of three weeks, which shall be received by the authority for its consideration to decide as to whether the petitioner had shown any sufficient cause for the belated filing of the "C" forms and appropriate further orders shall be passed in accordance with law.
10) The learned Counsel also relied upon the Order passed by the Tribunal in T.A. No. 167/2017 and batch, dated 08.01.2019, wherein, the Tribunal while allowing the appeals, remanded the matters to the 1 (46 STC 164) 2 [2007] 007 VST 0730 4 Assessing Authority to examine the issue afresh by permitting the Appellants to file the 'H' forms and then pass appropriate orders within three months from the date of receipt of the order.
11) Having regard to the Judgments referred to above and the Judgment of this Court and the Hon'ble Apex Court, we feel that it is a fit case where the relief sought for by the petitioner can be granted to the extent of directing the authority to reopen assessment filed by the petitioner through letter, dated 02.05.2017, and consider the documents, more particularly, 'C' form and 'H' form declarations and pass orders in accordance with law, within a period of three months from the date of receipt of a copy of this order.
12) Accordingly, the Writ Petition is allowed, to the extent indicated above. No order as to costs.
13) Consequently, miscellaneous petitions pending, if any, shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR ________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date: 30.10.2019.
SM.
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI CHEEKATI MANAVENDRANATH ROY W.P. No. 16718 of 2019 (Per the Hon'ble Sri Justice C.Praveen Kumar) Date: 30.10.2019 SM.