Andhra HC (Pre-Telangana)
Oriental Enterprises vs Commissioner Of Commercial Taxes on 9 April, 1996
Equivalent citations: [2003]133STC218(AP)
Author: Y.V. Narayana
Bench: Syed Shah Mohammed Quadri, Y.V. Narayana
JUDGMENT Y.V. Narayana, J.
1. This appeal is preferred by M/s. Oriental Enterprises, Guntur, the appellant herein against the order of the Commissioner, Commercial Taxes, Hyderabad dated March 15, 1995, passed in CCT's Ref. No. L.V. (2)786/1994.
2. The brief facts of the case are as under : The appellant was originally assessed to sales tax for the assessment year 1984-85 by the Commercial Tax Officer, IV Circle, Guntur on February 16, 1989, on a net turnover of Rs. 28,08,987. That assessment had become final as no appeal was preferred against it before the first appellate authority. The succeeding assessing authority has reopened the said order of assessment under Section 14(4) of the Andhra Pradesh General Sales Tax Act (6 of 1957) (hereinafter referred to as "the Act") on the ground that during inspection held on July 16, 1985 the Inspecting Officers have come into possession of some incriminating material. The succeeding assessing authority passed a reassessment order on December 31, 1985 whereby tax was levied on the additional turnover of Rs. 23,91,326. That assessment order was questioned before the first appellate authority by way of appeal, which was dismissed on February 21, 1986. The order of the first appellate authority was questioned before the Sales Tax Appellate Tribunal, Hyderabad by way of appeal. The appellate Tribunal set aside the order of the first appellate authority and remanded the matter for fresh disposal according to the directions issued in the said order. On remand the matter was considered by the first appellate authority afresh and the appeal was disposed of on March 16, 1991 setting aside the order of the assessing authority. That order of the first appellate authority dated March 16, 1991 was suo motu proposed to be revised by the Commissioner, Commercial Taxes, Hyderabad, under the powers conferred under Section 20(1) of the Act and finally order was passed on March 15, 1995 against which the present special appeal is preferred.
3. The admitted facts are : The revised order dated March 15, 1995 passed by the respondent was served on the appellant on November 13, 1995. The consequential order of the Commercial Tax Officer dated February 1, 1996 passed in pursuance of the revision order impugned in this appeal, was served on the appellant on February 18, 1996.
4. The learned counsel for the appellant contended that since the impugned order was served on the appellant on November 13, 1995, which is beyond four years from the date of order passed after remand (i.e., four years after the order dated March 16, 1991), the order is invalid, illegal and without jurisdiction as per the provisions of Section 20(3) of the Act.
5. On the other hand the learned Special Government Pleader appearing for the respondent contended that Section 20(3) of the Act lays down that the powers conferred under Sub-sections (1) and (2) of Section 20 of the Act shall be exercisable only within such period not exceeding four years from the date on which the order was served on the dealer and in the present case the order was passed on March 15, 1995 exercising the powers under Sub-sections (1) and (2) of Section 20 of the Act, i.e., within four years and therefore the impugned order is perfectly just and valid and the service of the order on the dealer is an administrative duty (ministerial duty) which need not be within the four years' period mentioned in Section 20(3) of the Act ; the order should be served as expeditiously as practicable, within reasonable period.
6. Now the question before us : Whether the period of four years prescribed in Section 20(3) of the Act includes the period of service of the final order or not ?
7. In support of his contention the learned counsel for the appellant relied on two decisions, viz., State of A.P. v. M. Rama-kishtaiah & Co. [1994] 93 STC 406 (SC) and State of A.P. v. Toshiba Anand Batteries Ltd. ,
8. In State of A.P. v. M. Ramakishtaiah & Co. [1994] 93 STC 406 (SC) an assessment order passed in September, 1969, was sought to be revised by the Deputy Commissioner under Section 20(2) of the Act. He passed an order prejudicial to the assessee. The order was said to have been made on January 6, 1973, but it was served after the expiry of four years from the date of the assessment order, on the assessee on November 21, 1973, i.e., ten and half months later. There was no explanation by the Deputy Commissioner why the service of the order was so delayed. The Supreme Court held that in the absence of any explanation whatsoever, the court must presume that the order was not made on the date it purported to have been made and that it could have been made after the expiry of the period of four years prescribed for passing such an order in revision and hence the order was bad. In the present case there is no dispute about the passing of the order on March 15, 1995. Moreover there was explanation given by the Deputy Commercial Tax Officer, Kothapeta Circle, Guntur, in the counter-affidavit filed in this case, for the delay in serving the orders on the assessee. The delay is only ministerial delay. Since the order was passed admittedly on March 15, 1995 within four years from the order passed after remand, i.e., March 16, 1991 and since there is a satisfactory explanation for the delay in serving the final order on the assessee, the decision relied on by the learned counsel for the appellant is of no help,
9. In State of A.P. v. Toshiba Anand Batteries Ltd. , this Court considered the earlier decisions of this Court, viz. (1) The case of Rajmal Multanmal and Company v. Commercial Tax Officer [1976] 37 STC 252 wherein it was held that Section 20(3) of the Act provides that the powers of revision were to be exercised by the Deputy Commissioner within a specified period and if the jurisdiction was exercised by the Deputy Commissioner by passing the order within the specified period of limitation, even if the order was not communicated to the petitioner within four years, it did not matter. This was obviously because communication of the order was really a sort of ministerial exercise and did not relate to the exercise of powers as such. This decision of this Court is applicable to the present case on all fours as the order impugned in this appeal was passed within the period of four years. (2) The case of Khetmal Parekh & Company v. State of A.P. [1976] 38 STC 531 (AP) wherein it was held that for the purpose of limitation it was sufficient if the Deputy Commissioner passed the order within four years from the date of service of the order sought to be revised and it was not necessary that the said order should be served on the assessee within that period. In the present case it is not known as to when the order sought to be revised was served on the assessee. Moreover the order impugned in this appeal was passed well within four years from the date of the order sought to be revised, i.e., the order dated March 16, 1991. Even according to this decision also the order impugned in this appeal is well within the prescribed period of limitation, i.e., four years. (3) In the decision in M. Ramakrishnaiah & Co. v. State of A.P. [1976] 38 STC 537 (AP), similar view in the above two cases was taken, though it was further held that the order in revision did not bind the assessee in view of the inordinate delay in serving the order of revision. But in the present case explanation was given for the' delay in serving the order of revision, which is a ministerial delay. Since similar view of the above cases regarding limitation was taken even in this case also, we have no hesitation to hold that the order impugned in this appeal is well within the period of statutory limitation of four years. (4) The decision in Meenakshi Corporation v. Deputy Commissioner of Commercial Taxes [1977] 40 STC 101. In this case this Court specifically held that if the order of Deputy Commissioner was passed within the period of four years, it was not barred by limitation even though it was communicated to the (appellant) petitioner (assessee) after the period of four years was over. Even this case also fully covers the question involved in this appeal, i.e., the order impugned in this appeal is within the time prescribed by Section 20(3) of the Act. Considering all the above cases, this Court in State of A.P. v. Toshiba Anand Batteries Ltd. [19951 96 STC 664 held that a consistent view was taken by this Court which has been affirmed by the apex Court that the period of limitation of four years prescribed by Section 20(3) of the Act covers the whole proceedings of the revision including passing of the final order. In that case this Court further held that "the observations are clear and emphatic in all these cases that the order has to be passed within four year period of limitation".
10. Taking into consideration the consistent view taken by this Court, we have no hesitation to hold that the order impugned in this appeal, does not suffer from any irregularity or illegality and it is just and reasonable, since the final order was passed well within four years from the date of order passed on March 16, 1991, We see no merits in this appeal, warranting interference by this Court. The appeal is accordingly dismissed. No costs.