Dismissed

M/s. S.E. Graphites Private Limited, v. State of Andhra Pradesh

Telangana HC17 Sept 2013WP/15384/2013

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the rejection of an appeal filed by a VAT dealer. The court held that the appeal was rightly rejected under the A.P. VAT Act because the admitted tax was paid after the mandatory 60-day period, regardless of subsequent court decisions allowing extensions in different facts or under Article 142.

What did the court decide?

Writ Petition dismissed. No costs. Pending miscellaneous petitions closed.

M/s. S.E. Graphites Private Limited, Vs State of Andhra Pradesh — Telangana HC (2013) — LawSathi Research

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THE HON’BLE Ms. JUSTICE G.ROHINI AND THE HON’BLE SRI JUSTICE CHALLA KODANDARAM

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WRIT PETITION No.15384 of 2013

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ORDER: (Per G.Rohini, J)

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The petitioner is a registered dealer under the provisions of the A.P. Value Added Tax Act, 2005 (for short, ‘A.P. VAT Act’). By order dated 9.1.2009 in Form-VAT 305, the petitioner was assessed for the period from June, 2005 to July, 2007. Against the said order, the petitioner preferred an appeal before the 2nd respondent - Appellate Deputy Commissioner (CT), Hyderabad Rural Division, on 16.2.2009. The said Appeal was rejected by the 2nd respondent by order dated 15.3.2013 on the ground that the petitioner failed to pay the admitted tax within the maximum period of 60 days as provided under Section 31 (1) of the A.P. VAT Act. Aggrieved by the same, the present writ petition is filed.

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We have heard Sri M.V.J.K.Kumar, the learned counsel for the petitioner and Sri P. Balaji Varma, the learned Special Standing Counsel for Commercial Taxes appearing for the respondents.

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It is pleaded in the writ petition that the assessment order dated 9.1.2009 was served on the petitioner on 15.1.2009. As per Section 31 (1) of the A.P. VAT Act, the appeal has to be preferred within 30 days from the date of service of the assessment order. However, the Appellate Authority may admit the Appeal within a further period of 30 days and thus a maximum period of 60 days from the date of service of the assessment order is available to prefer an appeal. Admittedly, the petitioner preferred the appeal on 16.2.2009 i.e., well within the maximum period of 60 days. However, as per the second proviso to Section 31 (1) of the A.P. VAT Act, the appeal shall not be admitted unless the dealer produces the proof of payment of the admitted tax,

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penalty and interest apart from 12.5% of the difference of tax.

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In the present case, though the petitioner paid 12.5% of the disputed tax and produced the proof of payment along with the appeal, the admitted tax was paid subsequently by way of different Pay Orders between 20.06.2009 and 03.08.2009 i.e., beyond the stipulated maximum period of 60 days.

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In ANKAMMA TRADING COMPANY v. APPELLATE DEPUTY [1] COMMISSIONER a Division Bench of this Court held that payment of admitted tax or 12.5% of the disputed tax beyond the period of 60 days from the date of receipt of a copy of the order of the assessing authority would disable the appellate authority from admitting the appeal.

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In the light of the law laid down by this Court in ANKAMMA TRADING COMPANY’S case (1 supra) the impugned order dated 15.3.2013 came to be passed by the 2nd respondent rejecting the petitioner’s appeal.

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Having regard to the undisputed fact that the petitioner had paid the admitted tax beyond the maximum period of 60 days, we are unable to hold that the impugned order passed by the 2nd respondent suffered from any error warranting interference.

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However, placing reliance upon a later decision of this Court in S. PITCHI REDDY, GUNTUR & ANOTHER v. APPELLATE DEPUTY [2] COMMISSIONER (CT), GUNTUR it is vehemently contended by the learned counsel for the petitioner that the 2nd respondent ought not to have rejected the petitioner’s appeal in view of the fact that by the date of the impugned order the petitioner had already paid the admitted tax. It is submitted by the learned counsel that in view of the decision in S.PITCHI REDDY’S case (2 supra) it is open to the appellate authority to extend the time for making the pre-deposit.

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Similar contention was considered and negatived by this Court

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in W.P.No.13751 of 2013 and the Division Bench, to which one of us (Justice G. Rohini) is a member, held that the discretion exercised by this Court in S.PITCHI REDDY’S case (2 supra) in permitting the petitioner therein to deposit the amount within two weeks in the facts and circumstances of the said case, cannot be treated as a precedent. For the very same reasons, the contention advanced by the learned counsel for the petitioner that the appellate authority ought to have extended the time for making pre-deposit cannot be accepted.

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The learned counsel for the petitioner has also placed reliance upon the order of the Supreme Court, dated 17.09.2012 in Special Leave to Appeal (Civil) No.32221/2011 (M/s. Ideal Detonators Private Limited V. Commercial Tax Officer and another) which was filed by one of the petitioners in ANKAMMA TRADING COMPANY’S case (1 supra) wherein it was held:

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“It is stated before us by learned counsel appearing for the petitioner that 12.5 per cent of the disputed tax, has since been paid in terms of second proviso to Section 31 of the A.P. Value Added Tax Act, 2005. Although admittedly the said amount has not been deposited within the time granted, yet, in the interests of justice, we deem it proper and expedient to dispose of these petitions with a direction to the Appellate Deputy Commissioners at Panjagutta, Hyderabad and (CT), Secunderabad Division, Hyderabad, where petitioner’s Appeal Nos.A.R.Sl.No.B/29/2010 and G.I. No.A/252/2008 respectively been filed, to revive the same and dispose them of on merits, after due notice to the parties. We, however, make it clear that we have not evaluated the merits of the grounds urged in the present special leave petitions. The special leave petitions stand dispose of in the above terms.”

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Apparently, the Supreme Court, while disposing of the appeal, did not go into the merits of the case. In fact it was made clear that the merits of the grounds urged in the said Leave Petition were not evaluated. Thus it is clear that the relief was granted in exercise of the powers conferred under Article 142 of the Constitution of India. Therefore, in our considered opinion, the above decision cited by the learned counsel for the petitioner cannot be treated as a precedent.

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For the aforesaid reasons, the 2nd respondent had rightly

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rejected the petitioner’s appeal following the ratio laid down in ANKAMMA TRADING COMPANY’S case (1 supra). Hence, the impugned order warrants no interference on any ground whatsoever.

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Accordingly, Writ Petition is dismissed. No costs. Consequently the miscellaneous petitions, if any, pending in this writ petition shall stand closed.

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G. ROHINI,J

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___________________________ CHALLA KODANDARAM,J

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Date:17-09-2013. Gk

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THE HON’BLE Ms. JUSTICE G.ROHINI

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AND

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THE HON’BLE SRI JUSTICE CHALLA KODANDARAM