Allowed

M/s. Pratibha Constructions Engineers and v. The Commercial Tax Officer

Telangana HC3 Oct 2012WP/30579/2012

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a tax revision order, quashing it due to the petitioner's failure to respond to a show cause notice. The matter was remitted for a fresh revision after hearing objections, with costs awarded against the petitioner.

What did the court decide?

Order of revision dated 31.12.2011 quashed; matter remitted for fresh order after objections; petitioner to pay Rs.10,000 costs.

M/s. Pratibha Constructions Engineers and… — Pension and Retirement Benefits | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO

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WRIT PETITION No.30579 of 2012

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Date: 03.10.2012

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Between: M/s.Pratibha Constructions Engineers & Contractors (India) Private Limited, Rep. by its Director, Mr. Ramachandra Dattatraya Jadhav, 223/5, E Ward, Tarabai Park, Kolhapur, Maharashtra State AND The Commercial Tax Officer, Aryapuram Circle, Rajahmundry East Godavari District and two others

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… Petitioner

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… Respondents

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THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO

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WRIT PETITION No.30579 of 2012

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ORDER (Per the Hon’ble Sri Justice Goda Raghuram):

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Heard Sri S.Ravi, learned Senior Counsel representing Sri S. Dwarakanath, learned counsel for the petitioner and

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Sri B. Venkatadri, learned Special Government Pleader for Commercial Taxes for the respondents-Revenue.

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The challenge in this writ petition is to an order of revision dated 31.12.2011 passed by the second respondent in purported exercise of powers under Section 20(2) of the Andhra Pradesh General Sales Tax Act, 1957.

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The petitioner is a dealer in works contract at Rajahmundry, registered on the rolls of the first respondent - Commercial Tax Officer, Aryapuram. For the Assessment Year 2004-05, the petitioner is assessed by the order dated 18.03.2008, on a gross and net turnover of Rs.45,52,07,780/- and Rs.6,95,79,980/- respectively, after allowing exemption on a turnover of Rs.38,56,27,800/-. The Assessing Officer followed the procedure under Rule 6(2) of the Andhra Pradesh General Sales Tax Rules and allowed deductions on the items specified in Rule 6(2) (a to i) from out of the gross receipts of contracts.

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Proposing to revise the order of Assessment, a revisional show cause notice was issued on 30.08.2011 which was received by the petitioner assessee on 05.10.2011. He requested 30 days time to file a response to the show cause notice. By an endorsement dated

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27.10.2011 the petitioner was granted time as sought. The petitioner did not however submit its response to the revisional show cause notice dated 30.08.2011. In the circumstances, the second respondent by the order impugned dated 31.12.2011 revised the order of Assessment and determined a balance tax liability of Rs.3,85,42,601/. Against the said order, the petitioner has an appellate remedy to the Tribunal (STAT, Visakhapatnam) and it initially preferred an appeal but without depositing 25% of the disputed quantum of tax.

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A memo dated 03.10.2012 has been filed stating that the petitioner would not pursue the defective appeal preferred to the Tribunal against the impugned order of revision passed by the second respondent.

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Though the petitioner concedes its lapse in not responding to the revision show cause notice dated 30.08.2011 even within the further time sought, by its representation dated 05.10.2011, it is now contended that the impugned order is perverse and does not proceed on any rational analysis of the material on record. The learned counsel states that even on analysis of the revision show cause notice dated 30.08.2011, apart from the impugned order of revision, the perversity in revisional exercise could be demonstrated. In the circumstances however the learned counsel seeks an opportunity to submit its objections to the second respondent, the revisional authority, though the petitioner was remiss in not earlier availing the opportunity.

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The learned Special Government Pleader for Commercial Taxes however states that since the petitioner failed to avail the opportunity provided during the revision proceedings, the petitioner cannot make any grievance that the order was passed without notice and adequate opportunity.

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On a perusal of the impugned order of revision and in the light

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of the averments in the affidavit accompanying the writ petition, it is apparent that serious and eminently arguable positions of fact and law could be canvassed by the petitioner in response to the proposal to revise the order of assessment. We therefore consider it appropriate that all these contentions be more appropriately urged in the revision proceedings and not before this Court under Article 226 of the Constitution. However since the petitioner failed to avail the opportunity to respond to revision proposed, vide the revision show cause notice dated 30.08.2011, we are inclined to allow the writ petition, but on terms.

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Accordingly, the order of revision dated 31.12.2011 passed by the second respondent in DC.ORDER No.622 is quashed and the matter remitted to the second respondent for passing a fresh order of revision, after considering the objections if any that may be filed by the petitioner within a period of three weeks from today. After the said period and whether the petitioner filed objections or not by that time, the second respondent may pass a fresh order of revision on the basis of the material available on record and after considering the objections if any filed by the petitioner within time; and in accordance with law. In view of the petitioner’s failure to avail the opportunity provided by the second respondent vide the show cause notice dated 30.08.2011, we consider it appropriate that the petitioner should pay costs of Rs.10,000/- to the credit of the Secretary, Andhra Pradesh Legal Services Authority, within a period of four weeks from today.

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The writ petition is allowed as above and with costs.

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JUSTICE GODA RAGHURAM

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JUSTICE M.S.RAMACHANDRA RAO

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Date: 03.10.2012 va

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THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO

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WRIT PETITION No.30579 of 2012

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(order of the Bench delivered by the Hon’ble Sri Justice Goda Raghuram)

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Date: 03.10.2012

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M/s. Pratibha Constructions Engineers and v. The Commercial Tax Officer

Case brief

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M/s. Pratibha Constructions Engineers and v. The Commercial Tax Officer

Case brief

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