Dismissed

M/s. Indian Aluminum Company Limited, v. The Assistant Commissioner of Commercial Taxes

Telangana HC11 Feb 2014WP/3667/2014

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order that denied the petitioner's request to adjust entry tax paid entry tax against tax arrears, holding that such adjustment constitutes a refund barred by stay orders from the Supreme Court in related Special Leave Petitions.

What did the court decide?

Writ petition dismissed; respondent justified in disallowing adjustment of entry tax pending Supreme Court decision.

M/s. Indian Aluminum Company Limited, Vs The… — Writ and Judicial Review | Telangana HC (2014)

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HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA AND HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY

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WRIT PETITION No. 3667 OF 2014

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Dated: 11^th February, 2014

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BETWEEN

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M/s. Indian Aluminum Company Limited, (presently Hindalco Industries Ltd.,), 312 Minerva Complex, 94 S.D Road, Secunderabad, represented by its Assistant General Manager-Accounts, Mr. K.N.V.S.N. Murthy, S/o Venkata Ramana, aged about 47 years, Hyderabad District

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…Petitioner

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And

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The Assistant Commissioner of Commercial Taxes, LTU, Hyderabad Rural Division, 4^th Floor, Gaganvihar, Nampally, Hyderabad

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…..Respondents

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HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA AND HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY

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WRIT PETITION No. 3667 OF 2014

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ORDER: ( per the Hon'ble Sri Justice Ashutosh Mohunta)

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The petitioner is aggrieved by the action of the Assistant Commissioner of Commercial Taxes, the respondent herein in not complying with the direction of the Appellate Deputy Commissioner (CT), Secunderabad Division, dated 11-12-2009 in Appeal No.N/21/2007-08 to credit or adjust the payment of entry tax of Rs.84,34,563/- during the assessment year 2003-04 refundable in terms of the judgment of this Court in M/s. Sree Rayalaseema Alkalies & Allied Chemical Ltd., Hyderabad & others vs. State of

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Andhra Pradesh^[1] . The petitioner also seeks a direction to the respondent not to recover the tax arrears for the assessment years 2003-04 and 2004-05 (CST) to the extent of the said amount due to be refunded to it.

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The petitioner is a company dealing in manufacture and sale of aluminium sheets in the State of Andhra Pradesh as well as out side the state. It is its case that tax on entry of aluminium metal purchased from other states was collected at Check Posts during the assessment years 2003-04 in terms Section 3 of the Andhra Pradesh Tax on Entry of Goods into Local Areas Act, 2001 (for short ‘the Entry Tax Act’) and in view of the fact that sales tax was being levied on the finished products from out of the raw material that suffered entry tax, it filed Writ Petition No.13533 of 2007 questioning the vires of Section 3 of the Entry Tax Act and this Court in a batch of writ petitions including the writ petition filed by it in M/s. Sree Rayalaseema Alkalies case (1 supra) declared Section 3 of the Entry Tax as unconstitutional. Therefore in terms thereof, it is the case of the petitioner that the entry tax collected from it became refundable.

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It is further stated by the petitioner that questioning the judgment of this Court in M/s. Sree Rayalaseema Alkalies case (1 supra), the State filed special leave petitions being SLP (Civil) Ns.8053-8077 of 2008 before the Supreme Court in which the Supreme Court while ordering notice granted stay of refund of entry tax.

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When the respondent denied the request of the petitioner to adjust entry tax paid by it, an appeal was preferred before the Appellate Deputy Commissioner (CT), Hyderabad and the same was allowed by order dated 11-12-2009 setting aside the impugned assessment with a direction to re-do the assessment afresh and take appropriate action either to credit the entry tax so collected or adjust

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the same against the tax arrears, if any, after causing due verification of the particulars of entry tax paid which are stated to be available with the petitioner. The petitioner was further directed to furnish the particulars of payment of entry tax to the assessing authority within 15 days from the date of order, failing with the impugned order was ordered to stand on force.

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It is the case of the petitioner that the respondent while issuing the consequential proceedings of assessment dated 04-12-2012 in view of the directions of the Appellate Deputy Commissioner had not adjusted the entry tax collected for purchase of aluminimum towards the tax payable for the assessment years 200304. Hence, the writ petition.

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Heard the learned counsel for both sides and perused the material available on record.

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It is the contention of the petitioner that the Supreme Court had merely ordered stay of refund of entry tax paid by the assesses and by any stretch of imagination it cannot be said that the amount cannot be adjusted towards the tax payable by the assessees subject to the final decision of the Supreme Court and in order to safeguard the interest of the State, an undertaking can always be taken from the assessees for repayment of the adjusted amount in case the State succeeds in the appeals pending before the Supreme Court.

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The contention of the petitioner cannot be accepted for the simple reason that adjustment of entry tax towards the tax payable by the assessee amounts to refund of entry tax which would be contravening the orders passed by the Supreme Court in the SLPs referred to above. In our considered opinion, the matter is subjudice before the Supreme Court, and, therefore, the respondent was justified in disallowing the request of the petitioner for adjustment of entry tax

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towards the tax payable by it.

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It is pertinent to note that in the order passed by him the Appellate Deputy Commissioner has not referred the orders of the Supreme Court in the SLPs referred to above. Perhaps, the orders of the Supreme Court might not have been brought to his notice. The counsel for the petitioner is unable to state whether the orders of the Supreme Court have been brought to the notice of the Appellate Deputy Commissioner or not. Had the Appellate Deputy Commissioner been aware of the orders of the Supreme Court, probably he might not have directed the respondent to re-do the assessment afresh.

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In the circumstances, we see no reason to interfere with the impugned order passed by the respondent and, therefore, the writ petition is liable to be dismissed.

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The writ petition is accordingly dismissed. Miscellaneous petitions, if any, pending consideration shall stand closed. No order as to costs.

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ASHUTOSH MOHUNTA, J

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M.SATYANARAYANA MURTHY, J

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Dated: 11^th February, 2014 ks

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[1] 46 APSTJ 1

M/s. Indian Aluminum Company Limited, v. The Assistant Commissioner of Commercial Taxes

Case brief

What is this about?

What did the court decide?

M/s. Indian Aluminum Company Limited, v. The Assistant Commissioner of Commercial Taxes

Case brief

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What did the court decide?

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