Allowed

M/s Parmeshwari Gunny Merchant v. Commercial Tax Officer

Telangana HC26 Apr 2021WP/10934/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an ex-parte central sales tax assessment order. The Court found a violation of natural justice principles as no pre-assessment show cause notice was served and no personal hearing was afforded. The order was set aside and remitted for fresh consideration.

What did the court decide?

The ex-parte assessment order A.O. No. 35354 dt. 26-03-2020 is set aside and remitted to the 1st respondent for fresh consideration. The 1st respondent is directed to issue a pre-assessment show cause

M/s Parmeshwari Gunny Merchant Vs Commercial Tax… — Writ and Judicial Review | Telangana HC (2021)

¶1

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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(Special Original Jurisdiction)

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MONDAY, THE TWENTY SIXTH DAY OF APRIL

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TWO THOUSAND ANO TWENTY ONE

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PRESENT

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THE HON'BLE SRI JUSTICE M. S. RAMACH.ANDRA RAO

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AND

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THE HON'BLE SRI JUSTICE T. VINOD KUMAR

¶9

WRIT PETITI ON NO: 10934 OF 2021

¶10

Between:

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M/s Parmeshwari Gunny Merchant, 7-7-699/c, Gandhi Gunj, Vegetable Market, Nizamabad.(Telangana), 50300'l rep. by its Proprietor, lvlr. yo{esh J-aju S/o Sri Sita Ram Jaju, resident of Nizamabad. .

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...PETITIONER

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AND

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1 Commercial Tax Officer, Office of the Asst. Commissioner State Tax, Nizamabad Circle, Nizamabad Divislon, lst Floor, Tilak Garden Municipal Complex, Nizamabad.

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2 Asst. Commissioner of State Tax, Nizamabad Circle, Nizainabad Division, lst Floor, Tilak Garden Municipal Complex, Nizamabad.

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2 Commissioner of Commercial Taxes, Govt. of Telangana, lst Floor, Commissioner of Commercial Taxes Building, Nampally, Hyderabad^-

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4 The Principal Secretary to Revenue Department, Government of Telangana, secretariat' Hyderabad

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..RE''.NDENTS

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Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ of Mandamus or any other appropriate writ, order or direction declaring the final ex-parte assessment order dt.26l03/2020 passed by the 1st Respondent for the assessment year 201 5-16 under the CST Act, 1 956 by which date pandemic covid-1 9 was declared lockdown in demanding central sales Tax at Rs. 1 1,78,6521- and without serving show cause notice, or any reminder notice dt.1 6/1 1 12019 or final notice dl.26tO3l2O2O levying higher rate of central sales tax @14.5% under the CST Act, i 956, when the actual interstate sale turnover is at Rs.26,73,994/- is covered by C declaration forms is quite arbitrary, illegal, contrary to law and consequently set aside the ex-parte assessment order d1.2610312020 without following mandatory procedure in serving the notices as prescribed under the Act, as violative of principles of nature justice, equity and fair play

¶20

lA NO: 1 OF 202'l

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of collection of disputed central sales tax of Rs.11,78,6521- pursuant to the ex-parte assessment order dt.26103/2020 passed by the lst respondent for the assessment year 2015-16 under the CST Act, pending disposal of the above writ petition, pending disposal of the above writ petition

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Counsel for the Petitioner: SRI TEJPRAKASH TOSHNIWAL

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Counsel for Respondents: SRI SAI KRISHNA, AGP FOR

¶24

THE ADVOCATE GENERAL

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The Court made the following: ORDER

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HONOURABLE SRI JUSTICE^{M.S.RAMACTIANDRA RAO} AND

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HONOURABLE SRI JUSTICE^T.VINODKUMAR

¶28

WRIT PETITION No.10934^of 204

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ORDER:^(Per Hon'ble^{Sri JusticeM.S.Ramachandra Rao)}

¶30

Heard learned counsel for^{petitioner and Sri Sai Krishna,leamed} Assistant Govemment Pleader^{attachedto the Office of the leamed} Advocate General appearing^{for respondents.}

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In this Writ Petition,^{petitionerassails the AssessmentOrder AO} No.35354 dt.26-03-2020^{passed by 1" respondent underthe Central Sales} Tax Act 1956^(for short^'the Act')^{for the period April, 2015 to March,} 2016.

¶32

Learned counsel for^{petitioner contends that the impugned} Assessment Order has been^{passed withoutserving pre-assessmentshow} cause notice, and though^{the impugned order refers to reminder notice} dt.16-11-2019 and final^{notice dt.06-03-2020,none of them were served} on petitioner and no opportunity^{ofpersonal hearing was affordedto the} impugned.

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It is further contended^{that the impugnedorder has been passed} after lockdown on account of^{Covid-19pandemichas been initiatedby} the State and Central^{Govemmentsand there has been violationof} principles of natural^justice.

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Sri Sai Krishna, learned^{Assistant Government Pleaderattachedto} the Office of the learned Advocate^{General appearingfor respondents} does not dispute that the^{impugnedorder has been passed without}

¶35

<br>

¶36

providing an opporflrnity of personal hearing and during Covid-l9 pandemic when it was not possible for any assessee to venture out'

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In this view of the matter, we are satisfied^{that there hasbeen} violation of principles of natural^justice.

¶38

Accordingly, the Writ Petition is allowed; the^impugned Assessment Order A.O.No.35354 dt.26-03-2020^{passed by 1't respondent} is set aside; matter is remitted to the I't^respondent for^fresh consideration; the I't respondent shall issue^{pre-assessment showcause} notice in accordance with Rule 64(1Xb) of^{the TelanganaVATRuleson} petitioner indicating the tumover proposed to be assessed^{to tax and the} tax proposed to be levied thereon;^{petitioner is permittedto file} explanation thereto along with supporting^{materialwithinsix (06)weeks} from the date of receipt of such show cause^{notice; a personal hearing} shall afforded to the^{petitionerby I"t respondent; and thenpassa reasoned} order shall be^passed by 1"^{respondentin accordance with law and} communicate it to the^{petitioner. No costs.}

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Consequeritly, miscellaneous^{petitions, pending if any, shallstand} closed.

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SD/. T.TIRUMALA DEVI ASSISTANT REGISTRAR

//TRUE COPY//

SECTION OFFICER

To,

The Commercial Tax Officer, Office^{of the Asst. CommissionerStateTax, Nizamabad} Circle, Nizamabad Division,^{lst Floor,Tilak Garden Municipal Complex,Nilamabad.}

¶45

The Alsistant Commissioner^{of StateTax, Nizamabad Circle, Nizamabad Division, lst} Floor, Tilak Garden Municipal Complex,^Nizamabad.

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The Commissioner of Conimercial^{iaxes,Govt. of Telangana, lst Floor,} Commissioner of Commercial^{Taxes Building, Nampally, Hyderabjtd}

¶47

The Principal Secretary to Revenue^{Department, Governmentof Telangana,} Secretariat. Hvderabad

¶48

One CC to Sri'Tejprakash Toshniwal^Advocate [OPUC]

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i*o CCsto Gp dbr Commercial^{Taxes, High Cirurt foathe State of Telangana.[OUT]}

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Two CD Copies

NIBC

)il'v

HIGH COURT

DATED:^261041202'l

TA
:)
o
11 JUN 2i)21
*

¶56

ORDER

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WP.No.10934^{of 2021}

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ALLOWING OF THE^{WRIT PETITION}

¶59

WITHOUT COSTS

M/s Parmeshwari Gunny Merchant v. Commercial Tax Officer

Case brief

What is this about?

What did the court decide?

M/s Parmeshwari Gunny Merchant v. Commercial Tax Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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