Partly allowed

M/S.Madhucon Project Limited v. Sales Tax Appellate Tribunal

Telangana HC9 Oct 2023TREVC/10/2008

Case brief

AI extract

What is this about?

The High Court dismissed the tax revision regarding concessional tax rates on cement, holding the petitioner ineligible. However, it allowed four revision cases concerning penalties, setting aside orders because the petitioner was denied an occasion to defend himself under the correct penal provision (Section 5-B(2)).

What did the court decide?

Tax Revision Case No. 8 dismissed regarding tax rates; Tax Revision Cases No. 9, 10, 11, and 12 allowed with penalty orders set aside.

M/S.Madhucon Project Limited Vs Sales Tax Appellate… — GST and Indirect Tax | Telangana HC (2023)

¶1

I3386 I

¶2

,r7

¶3

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

¶4

MONDAY,THE NINTH DAY OF OCTOBER i ( TWO THOUSAND AND TWENTY THREE

¶5

PRESENT

¶6

THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE LAXMI NARAYANAALISHETW

¶7

TAX REVISION CASE NOs: 8.9.10.11 AND'12^O F 2008

¶8

TREVC.No.S of 2008

¶9

Tax Revision Case under Section 22⁽¹⁾ of^{the Andhra Pradesh General} Sales Tax Act, 1957 against the Order dated^{19.11.2007in T.A. No. 724 ot 2OO7} on the file of the Sales Tax Appellate^{Tribunal,Hyderabad, Preferredagainst the} Order dated 18.05.2007 in Appeal No.^{Pl472l2OO4-05on the file of the Appellate} Deputy Commissioner^(CT), Punjagutta^{Division,Hyderabad, preferred against the} ! Oidei dated 28.02.2005 in Rc.No. PJTl10l1l2983 on the^{file of the Commercial Tax} .t Officer, Jubilee Hills Circle, Hyderabad.

¶10

Between:

¶11

M/S.Madhucon Proiects Limited, rep. by its Assistant General^{Manager(F &} A) Mr.N.Sahu Ryo.Road No.36, Jubilee Hills,^{Hyderabad - 500 033.}

¶12

..,PETITIONER

¶13

AND

¶14

Sales Tax Appellate Tribunal, rep. by^its State repesentative,^{before Sales} Tax Appellate Tribunal, Nampally, Hyderabad

¶15

...RESPONDENT

¶16

TREVC.No. 9 of 2008

¶17

Tax Revision Case under Section 22^{(1) of the Andhra Pradesh General} Sales Tax Act, 1957 against the Order^{dated 19.11.2007in T'A. No- 866 of 2OO5} on the file of the Sales Tax Appellate^{Tribunal, Hyderabad, Preferred againstthe} Order dated 31.08.2005 in Appeal^{No.Pl471l2OO4-05on the file of the Appellate}

¶18

2--

¶19

{

¶20

Deputy Commissioner (CT), Punjagutta Division, Hyderabad preferred against the order dated 05.03.2005 in Case No. 60/2004-05/Penalty-2001-02 on the file of the Commercial Tax'Officer, Jubilee Hills Circle, Hyderabad

¶21

Between:

¶22

M/S.Madhucon Projects Limited, rep. by its Assistant General Manager (F & A) Mr.N.Sahu Rl/o.Road No.36, Jubilee Hills, Hyderabad - 500 033.

...PETITIONER

AND

Sales Tax Appellate Tribunal, rep- by its State representative, before Sales Tax Appellate Tribunal, Nampally, Hyderabad ...RESPONDENT tI i* TREVC.N o:: 10 of 2008

¶27

Tax Revision Case under Section 22 (1) of the Andhra Pradesh General Sales Tax Act, 1957 against the Order dated 19.11.2007 in T.A. No. 867 of 2005 on the file of the Sales 'Tax-Appellate Tribunal, Hyderabad, Preferred against the !, Order dated 31.08.2005 in Appeal No. P1478120O4-05 on the file of the Appellate Deputy Commissioner (CT), Punjagutta Division, Hyderabad, prefened against the order dated 05.03.2005 in Case No. 60/2004-05 tPenalty-2oO2-O3 on the file of the ! Commercial Tax Officer, Jubilee Hills Circle, Hyderabad.

¶28

Between:

¶29

ttlUS.Madhucon Projects Limited, rep. by its Assistant General Manager (F & A) Mr.N.Sahu Rl/o.Road No.36, Jubilee Hills, Hyderabad - 50O 033.

¶30

tI t ...PETlTIONER r^'.i D t

¶31

AN D t ;j Sales Tax Appellate Tribunal, rep. by its State representative, before Sales Tax Appellate Tribunal, Nampally, Hyderabad

¶32

...RESPONDENT

¶33

TREVC.N;1 f of2oo} li r

¶34

Tax Revision Case under Section 22 (1) of the Andhra Pradesh General Sales Tax Act, 1957 against the Order dated 19.11.2007 in T.A. No. 868 of 2005 on the file of the . Sales Tax Appellate Tribunal, Hyderabad, Preferred against the

i*r-. rtU

i :

Order dated 31.08.2005 in Appeal No. Pl479l2OO4-05 on the file of the Appellate Deputy Commisiioner (CT), Puniagutta Division, Hyderabad,^preferred against the order dated 05.03.2005 in Case No. 60/2004-05/Penalty-2o03-04 on the file of the t. Commercial Tax Officer, Jubilee Hills Circle, Hyderabad.

¶41

_); I .Bdtween: * ,: ( .,,, I i uls.'tr,taohucon , Projects Limited, rep. by its Assistant General Manager (F & i^{, A) Mr.N.Sahu R/o.R} oad No.36, Jubilee Hills, Hyderabad - 500 033.

¶42

...PETITIONER

¶43

AN D

¶44

7 I Salel Tax Appellate Tribunal, rep. by its State representative, before Sales { Tax Appellate Tribunal, Nampally, Hyderabad

¶45

...RESPONDENT

¶46

TREVC.NoII2 oJ 2008

¶47

:. ,^{Tax Revision Case under Section22 (1) of the Andhra Pradesh General} Sales Tax Act, 1957 against the Order dated 19.11.2007 in T.A. No. 869 of 2005 on the file bf the Sales^.Tax Appellate Tribunal, Hyderabad, Preferred against the Order dated 3'1.08.2005 in^.Appeal No. P/48O/2004-05 on the file of the Appellate .l i , D6puty Coirmissioner^{(CT),i Punjagutta Division,Hyderabadpreferred against the} F+ t t. brtleildated 05.03.2005 in Case No.l60/2004-05/Penalty-2004-05 on the file of the 't r 4 Commercial Tax Officer, Jubilee Hills Circle, Hyderabad.

¶48

1 : $ :. Between: I i

¶49

|.l i:^{M/S.MadhuconProjects Limited, rep. by its'Assistant General Manager (F &} I^{j n) Ur.tt.SahuFl/o.Road No.36, Jubilee Hills, Hyderabad - 500O33.} j,i ': ': ...PETITIONER

¶50

AND...:

¶51

r.ll ' .-', i',t 1:,-rI i.-'.1 l '---'l: :. '-^{"1'"ltulSdle'itai Appellate Tribunal, rep. by its State representalive, before Sates}

¶52

-,:J,,,,. ),;f axAppellate Tribunal, Nampally, Hyderabad '., - - l-8,:;,. r-.i ", i^.i ,r ...RESPONDENT +, ;.f. t

¶53

ta tf -t,i {1 ) i I;

¶54

¶55

91 ',i , ! : clrn="t# the Petitioner,r{r (in all Revision Cases)

¶56

Sri S. DWARAKANATH, Senior Counsel representing Sri P. KARTHIK RAMANA

¶57

Counsel for the Respondent (in all Revision Cases) .r,r r : Sri K. RA"JI REDDY, SC for Commercial Tax ?! The Court made the following: COMMON ORDER

¶58

i I l I ,' } J ! t ',1lt , ,&* k,r ./i..1[:'rt:r..1 II j i iI^: ( t.. i 1I . II I ! {II ; ! j I I it 'I II | 'l'. .,a.* {At l^:^jl-' .A,Ii i#,.-s I ,,1, 1 !,i,r+;r , )i.

¶59

¶60

THE HONOURABLE SRI JUSTICE P. SAM KOSHY

¶61

AND

¶62

THE HONOTTRABLE SIR JUSTICE LAXMI NARAYANA ALISHETTY

¶63

Tax Revision Case No.E of2OO8 Tax Revision Case No.9 of2OO8 Tax Rewision Case No.lO of 2OO8 Tax Revision Case No.1 1 of 2OO8 and Tax Rewision Case No.12 of2OO8

¶64

COMMON ORDER i k)er the Hon'bte Si Justice^p. Sam Koshu)

¶65

The instant Tax Revision Cases arise from a common order passed by the Sales Tax Appellate Tribunal, Andhra Pradesh, at Hyderabad pertaining to the sarne assessee, and point of contention ald grounds raised to challenge the impugned order in all these frve tax revision cases being common, they are heard together and decided by this Common Order

¶66

Heard Mr. S. Dwarakanath, learned Senior Counsel appearing on behalf of the petitioners and Mr. K. Raji Reddy, learned Senior Standing Counsel for Commercia,l Tax, fcr the respondents.

¶67

For the sake of convenience, the facts in Tax Revision Case No.8 of 2008 are discussed hereunder.

¶68

Tax Revision Case No.8 of 2O08 is Iiled by the petitioner against the order of assessment and the remaining four Tax Revision Cases are filed assailing the order of the appellant-Deputy Commissioner, confirming the penalty imposed by the assessing authority.

¶69

Page 2 of 15

¶70

The point of contention in the instant^{case is : (a) whether the} petitioners are entitled to avail^{purchaseof cementat a concessional} rate, i.e., at the rate of^{47o instead of 160/o underthe provisionsof} Section 5-B of the Andhra^{PradeshGeneral SalesTax Act, 1957 (for} short, 'the ActJ; and^(b) whether^{the order of penaltypassed by the} assessing authority arld conf,rrmed^{by theAppellateDeputy} Commissioner under Section 7-A of^{the Act was justifiedparticularly} when Section 5-B itself provides for a^{penal provision.The} assessment orders involved in the^{present hve Revisions are of the} years 2O01-02, 2OO2-O3, 2OO3-O4 and 2OO4-05.

¶71

The brief facts relevant for the adjudication^of the^{disputesin the} present batch of Revisions are that the petitioner-assessee is^engaged in the business of executing works contract within the^erstwhile composite State of Andhra Pradesh. For the^purpose of^operationof the business, the petitioner had filled up Capitai^G- I^{Form as ts} required under Section 5-B of the aforesaid Act. In the said form,^the petitioner had shown cement as one of the raw materials used. For the purpose of getting registered with the Commercial Tax Department, the petitioner frlled up Capital G2 Registration Form, and later on, the petitioner was granted G2 Certilicate by the Commercia-l Tax Department. With the aid of G2 Certihcate, the petitioner was allowed to purchase cement at a concessional rate against 'G" forms

¶72

Page 3 of 15

¶73

which was required to be furnished by the appelrart at the time of purchase. The Government has been issuing notices from time to time in respect of goods which are "eligible" or .not eligible" for the concessional rate of tax under Section 5-B of the Act. In order to get gp registration certificate, a dealer has to apply in Form_G 1 specifically mentioning the description of the goods proposed to be manufactured and also describe the raw materials, component parts, required for the purpose of manufacture of the said finished product.

¶74

7 The State Government on |Z.OZ.2O01, in partial modification of Notification-Il in G.O.Ms.No.739 Revenue (CT.II) Department, dated 17.7O.2OOO, published a list of goods mentioned in the said notification which would not be eligibre for concessiona-r rate of tax under Section 5-B of the Act uid.e G.O.Ms.No.496 Revenue (CT.II) Department, dated IZ.O7.2OO1 (for short, the G.O.,). In the said G.O., item No.lO was "cement". Subsequently, on an inspection at the business premises of the assessee, it was learned that petitioner had been purchasing cement against G-Forms in spite of the said G.O. deleting the item "cement" from the list of goods erigible for being purchased at a concessional rate.

¶75

8' The assessing authority subsequentry issued a show-cause dated 03.02.2005 seeking explanation as to why "cement" and -readymix concrete" (R.M.C.) be not deleted from the G2 registration ti

¶76

Page 4 of 15

¶77

certificate. Subsequent to the show-cause notice, the petitioner submitted his reply raising various contentions which stood decided against petitioner vide proceedings dated 28.O2.2OO5. Against the said proceedings, the petitioner preferred appeal before the Appellate Deputy Commissioner which too stood dismissed by the Appellate authority vide order dated 18.05.2007 and which was further conhrmed in appeal by the Sales Tax Appellate Tribunal in T.A.No.724 of 2OO7 leading to the frling of present Tax Revision Case No.8 of 2008. Meanwhile, since the petitioner had been found purchasing cement at concessional rate of tax in spite of the above referred G.O. dated 17.O7.2OO7, wherein "cement" was included in the list of goods which would not be entitled for being purchased at a concessional rate, the assessing authority imposed penalty against the petitioner to the tune of three (03) of times the difference of tax payable by the petitioner. The order of penalty was also challenged before the Appellate Dy. Commissioner who too confirmed the penalty order which led to filing of appeal by the petitioner before the Sales Tax Appellate Tribunal, Andhra Pradesh, at Hyderabad in Tribunal Appeal No.866 of 2005 and batch. However, the Tribunal also conhrmed the penalty order and also the order of the Appellate Dy. Commissioner leading to filing of present Tax Revision Cases.

¶78

¶79

Page 5 of 15

¶80

Learned counsel for the petitioner contended that the order passed by the Appellate Dy. Commissioner in deleting "cement,, from G2 registration certificate was bad in law. Firstly, the petitioner had specihcally declared before the authorities that "cement,, was a raw material and that he was using it for the execution of works contract and RMC for which cement is again raw material for preparation of ready-mix concrete and thus, he was justified in purchasing cement at concessional rate. He further contended that even otherwise, as per G.o. also the petitioner would be entitled to purchase cement at concessional rate for the reason that the said G.o. excluded applicability of the G.o. on cement to those ma,ufacturers who manufactured frnished goods like asbestos sheets, pipes, paint manufacturers using white cement or hallow bricks.

¶81

According to him, since petitioner was a_lso purchasing cement for the purpose of manufacturing ready-mix concrete which is finished product so far as petitioner is concerned, therefore, as per the said G.O. also petitioner is entitled for purchase cement at concessional rate. He further contended that in any way petitioner had G2 registration certihcate permitting him to purchase cernent at concessional rate, therefore, it cannot be said that petitioner had violated any provision of law and that "cement" stood deleted from the said G2 registration certificate only w.e.f. 28.O2.2OO5. Therefore,

¶82

Page 6 of 15

¶83

under no circumstances^{can the petitioner be asked to pay the} difference of the^{tax up till 28.O2'2OO5and at the same time since} petitioner had a valid^{G2 registrationcertihcatefor purchasingcement} at a concessional^{rate ttp to 28 -O2 '2OO5, the petitioner cannot be} penalizedforhavingpurchased.cementataconcessionalrateupto 28.O2.2005.

¶84

So far^as the^{order of penalty beingbad, learned counsel for the} petitioner contended that^{the entire proceedings drawnfor the penalty} is again bad in^{law for the reasonthat the proceedings initiated for} levying penalty^{against the petitioner was under Section7-A(2)} whereas,itwasnotthecaseoftherespondentthatpetitionerhad purchased with false bill^{or a false voucheror a false certificateor a} false declaration or^{any other false and fake document enablinghim to} be taxed at a reduced^{rate. on the contrafy,the case of respondent} itself is that petitioner^{was not entitledfor levy of concessionaltax} under section 7-B and^{if the provision of Section 5-B(1) was misused,} the penalty proceedings^{could had been only under Section 5-B(2)} which in the instant^{case has not beendone and the notice issued for} penalty itself was under^{Section 7-A(2) whichin the instantcase is not} attracted at all.^{Therefore, the entire penal proceedingsitselfis per se} bad, illegal and liable^{to be set aside.}

¶85

PaSe 7 of 15

¶86

L2. Learned counsel for the petitioner further contended that since the petitioner rightly or wrongly had a valid G2 registration certificate issued from a competent authorized authority and the item "cement" getting deleted from the said registration certificate only w.e.f. 28.O2.2OO5, under no stretch of imagination, according to petitioner, can he be penalized and the order of penalty on this ground also ts liable to be set aside

¶87

Per contra, learned Senior Standing Counsel for the respondentState opposing the petition, contended that when once the Government had issued the G.O. on I7.O7.2O01 and which was well within the knowledge of the petitioner, there was no reason why the petitioner should have purchased cement against the G Forms and the authorities, therefore, were justified in issuing the impugned assessment order and penalty proceedings disentitling the petitioner from purchase of cement at reduced rate. According to him, the fact that petitioner had deliberately purchased cement under "G" forms, in spite of having knowledge of the same, stands established from the purchase of cement by the petitioner even after issuance of the showcause notice at the hrst instance on 03.02.2005. Thus, it cannot be said that petitioner was not aware of the G.O. dated l7.O7.2OOl or cement being excluded from the goods which could be purchased at a concessional rate.

¶88

Page 8 of 15

¶89

L4. Referring to^{proviso clauseto G'O' d'ated'17 'O7 '2OOl' learned} Senior Standing^{Counsel for the respondent-State strongly contended} that the proviso^{clause to the said G'O' would not be applicable to the} petitioneraspetitionerisnotamanufacturerofanyfrnishedproduct like. those mentioned^{inthe proviso clause, and therefore'the} assessmentorderandthepenaltyorderbotharefullyjustifiablein respect of^{purchase of cement beyond17 'O7 '2OOl '}

¶90

So far as the^{penalty proceedings initiated under sub-Section(2)} of Section 7-A,^{learned Senior Standingcounselfor the respondent-} Statecontend.edthatSub.Section(2)ofsectionT-Awaswrongly mentioned instead^{of Sub-section(2) of section 5-B. Accordingto} him,onaccountofquotingwrongprovisionoflawbyitselfwouldnot vitiate the entire^{penalty proviso inthe afore-givenfactualand} admitted backdrop so far^{as petitioner having purchased cement} against G Forms at^{a concessionalrate even after issuanceof G.o.} dated 17.07.2001^{and furthereven after issuance of show-cause} notice dated o3.o2.2OO5.^{Thus, the learned senior standingcounsel} for the respondent-State^{prayed for dismissal of the Revisions as there} is a concurrent finding^{of fact by two of the authorities below including} the Sales Tax Appetlate Tribunal,^Hyderabad.

¶91

Having heard the contentions^{put forth on either side,the} admitted facts are that the^{petitionerbeing engagedin the businessof}

¶92

Page 9 of 15

¶93

executing works contract,^{the petitioner having got registered under} Section 5-B of the^{Act. The petitioner also obtained G2 registration} certificate allowing^{it to purchase cement at a concessionalrate under} Section 5-B of the^Act, the^{State Governmentvide G.O. dated} 17.07 2OOl added "cement" in^{the list of goods which could not be} purchased at a concessional^{rate, and the said G.O. has not been} challenged and is still in^{force from 17.O7 -2OOlonwards. Based on the} G2 registration certihcate the^{petitioner continued purchasingcement} against G Forms at a concessional^{rate which was detectedin an} inspection that was conducted^{somewhere in the year 2005'} Immediately, a show-cause^{notice was issued to the petitioneron} O3.O2.2OO5. Even after issuance^{of the said show-causenotice,the} petitioner continued to purchase cement against^{the G Forms at a} concessional rate.

¶94

From the aforesaid factual^{matrix of the case, prior to issuance} of the G.O. dated. 17.O7.2OOl,^{cement was one of the item whichwas} eligible to be purchased at a^{concessional rate. It was in this context} that the authorities at the earliest time^{had issued the G2 registration} certihcate permitting the^petitioner to^{purchase cement ata} concessional rate. However, after^{issuanceof the G.O. dated} 17.O7.2OOl, the petitioner^{was not} entitled^{for purchase of cement at a} concessional rate. In spite^{of this, petitioner continuedto purchase}

¶95

Page 10 of 15

¶96

cement at a concessional rate against the G Forms. True, it is went unnoticed at the hands of the respondent so far as permitting the petitioner to purchase cement at a concessional rate even though the G.O. was in force since 17.07.20O1. Therefore, the petitioner, beyond 17.O7.2OOl, could not have purchased cement at a concessional rate and petitioner continued to purchase cement against the G Forms basing on the G2 registration certificate issued much before t7.o7.200t.

¶97

It would be relevant at this stage to take note of the proviso to G.O. dated 17.O7.2OOI so far as cement is concerned which for ready reference is being reproduced hereunder, viz.,

¶98

"Prouided further that the purchase of cement by manutfacturers of finistLed^{goodslike Asbestos sheets, Pipes, Paintmorutfactrtrers using} White Cement, Hallow Bicks are eligible for concessional rote of tax under Section 5B i.f those manufacturers use tLte Cement purchased by tlem as rau.t material to produce finished goods for saLe."

¶99

A plain reading of the aforesaid proviso would clearly give an indication that when a purchase of cement is made by a manufacturer of a finished good like asbestos sheets, pipes, paint manufacturers, hallow bricks, it would be eligible for purchase of cement at a concessional rate. The petitioner was not a manufacturer of any hnished goods like the ones mentioned in the preceding paragraph. The Government of India, Ministry of Finance, Department of Revenue itself vide their Circular No.237 of 1996, while clarifying as to whether

¶100

Page 11 of 15

¶101

the product "ready-mix concrete" can be classified as a finished product or not, held that "ready-mix concrete" is a material in a wet process state and is not a hnished product like block or pre-caste tiles, beams, etc. and had, thus, clarifred that all pending disputes and assessments on the issue may be settled in the light of the aforesaid guidelines.

¶102

In the light of the aforesaid instructions of the Central Government, it can be clearly inferred that the proviso to G.O. dated l7.O7.2OOl would not be applicable to the petitioner. Therefore, we are of the considered opinion that the assessing officer, the appellate authority and the Sales Tax Appellate Tribunal were justified by holding that the petitioner is liable to pay tax on cement at its normal rate and not at the concessional rate. We do not find any ambiguity or illegality so far as the order passed by the Sales Tax Appellate Tribunal in confirming the order of the Appellate Dy. Commissioner so also that of the Assessing Authority. The said issue whether the petitioner rs entitled for purchase of cement at a concessional rate under Section 5- B in the teeth of G.O. dated |7.O7.2OOI stands answered in the negative against the petitioner. Accordingly, Tax Revision Case No.8 of 2008 is dismissed.

Page 12 of 15

...'

Tax Revision Case Nos.9 10 1l and 12 of 2OO8::

¶107

As regards penalty orders in these^{Revisions are concerned,the} admitted factual matrix in the instant case is again that the^notices issued for the penalty proceedings was under^Section 7-A(2).^{The said} proviso is attracted only when a dealer produces a false bill,^voucher, declaration, certifrcate or ary other document for a^purchase to^be effected at a reduced rate. This, in fact, is not the case^{of the} respondent at all. The stand of the respondent all along^was that^the petitioner was liable to pay penalty under Section 5-B(2). For ready reference, both these two penal provisions would be required to^be appreciated and they are reproduced as under, viz.,

¶108

"Section 5-B(2) : If ang dealer, -

¶109

(t) rat hauing his monufactuing unit tuithin the State purcLtoses ang goods by fumishing a declaration under the prouiso to subsection (1); or

¶110

(iil hauing his manufacturing unit utithin the State and hauing purchased goods bg furnishing a declaration under the prouiso to sub-section (1) sells such goods contrary to such d.eclaration, the assessing authoitg, mag afier giuinil such deaLer a rea.sonable opportunitq of being heard, bg order in uriting, impose upon him bg uag of penaltg a sum uhich shall not be less^{than three} times but ruhirh mag extend to fiue times the amount of tax leuiable on tLLe sale of such goods so purchased."

¶111

Section 7-A{2) :

¶112

(2) Where a dealer issues or produces^a false bill,^uoucher, decloration, certiftcate or other document u.tith a uieu to support

¶113

Page 13 of 15

¶114

or make ang claim thot a transaction of sale or purchase effected bg him or any other dealer, is not lioble to be toted or is liable to be toxed at o reduced rate, the assessing authoritg shall on detecting such issue or production" direct tlrc dealer issuing or producing such document to pag as penaltg :

¶115

(i) in the case of first such detection, three times the tax due in respect of such transaction; and

¶116

(ii) in the cose of o seand or subsequent detection, fiue times the tax due in respect of such tran saction; prouided that before bsuing ang direction for the payment of the penaltg under this section, the assessing outhoritg shall giue to the dealer an opportunitg of mnking representation against the leuy of such penaltg."

¶117

The State Government itself had (in an earlier round of litigation between the petitioner and the State in Writ Petition No.14484 of 2OO5) in the counter-affrdavit filed by it accepted the fact that there was a clerical error inasmuch as quoting proviso to Section 7-A(2) while initiating penalty provision which for ready reference rs reproduced as under, viz.,

¶118

"7. ... ... ... These^penaltg orders utere serued on^{tLLe petitioner} on O5.O3.20O5 and O9.O3.2OO5. Hotaeuer, by mistoke a urong prouision Section 7-A(2)(ii) uas quoted instead of Section 5-B(2)(ii). It is utell settled proposition that mere qtoting of a^{u.trong prouisiondoesnot} uitiate tle pioceedings so long as the authoitg clotlrcs his action^under some other prouision in the Act. The ld^{respondentrelies on the} decision of the Hon'ble High Court reported in^{29 APSTJ."}

¶119

In the given factual backdrop what now^{seems to be looked into} is whether the petitioner ever had an^{occasion ofl-dqfend'ng} himselfⁱⁿ

¶120

Page 14 of 15

¶121

¶122

a penalty proceedings^{for a penalty to be imposed under Section} 5(B)(2) in the teeth^{of the reply f,rled by the respondentin the aforesaid} writ petition, viz.,^{Writ Petition No.14484 of 2005, which stands} admitted that the^{proceedingsdrawn for penalty was under Section} 7-A(21 arld, not under^Section 5(BX2).^{Thoughthe State has taken a} plea that there is some misquoting^{or wrong quoting of the provision,} nonetheless, the petitioner^{neverhad an occasion of defendinghimself} in a penalty proceedings under^{Section 5-B(2). What is also required} to be appreciated is that Section^{7-A(21and Section 5-B(2) are both} independent penal provisions.^{Separate proceedings have to be drawn} for each of the provisions. In the^{instant case, there does not seem to} be any corrigendum or rectification^{order issued by the respondent for} treating the notice under^{Section7 - A(21 as notice under Section 5-B(2)} either before imposing of the^{penalt5ror subsequently,except for the} admission on their part in the^{reply in Writ Petition No.14484of 2005'}

¶123

For the aforesaid reasons, since^{the petitionernever had an} occasion to defend himself under^{Section 5-B(2), theentire} proceedings initiated against the petitioner^{so far as imposing penalty} is concerned under Section 7-A(2)^{stands vitiated as the petitionerhas} taken a stand that the penalty to be imposed^{against the petitioner} was not under Section 7-A(2) but under Section 5-B(2).

Page 15 of 15

,t1i )

25.. In view of the same,^{the orders passed by the Sales Tax Appellate} Tribunal, Andhra Pradesh, at^{Hyderabad confirmingthe order of} penalty by the Appellate Dy.^{Commissionerand the Assesslng} Authority is improper^{and unjustihed and therefore,the sarne} deserves to be and are^{accordingly set aside.Consequently,the} impugned penalty orders^{passedby the Assessing Authority therein} are also set aside. The^{Tax Revision Case Nos.9,10, 11 and 12 of} 2OO8 are allowed.

¶129

In the result,^{Tax Revision case No.8 of 2OO8 stands dismissed,} arrd Tax Revision case^{Nos.9, 10, 11 and 12 0f 2008 standsa,110wed.} No costs.

¶130

As a sequel, miscellaneous^{petitions pending if any, shall stand}

¶131

closed.

¶132

SD/. B.S.CHIRANJEEVI
JOINT Gls R
/ffRUE COPY//.
SECTION OFFICER
To,
,f 2:1 :x, The Sales fsx Deputy trppellate Commissioner Tribunal, Hyde(cr rabad. ), Panjagutta Division, (with records' if anY)HYd erabad.
( records, if any) iii
3 Officer, Jubilee Hills Circle, HYderabad
r. -t' 4 oirdcc to sri P. KARTHIK RAMANA'fAdvocate [OPUC]
li- 5 netC'to sri K: RAJI REDDY; Advocate [OPUC]
6 T CD CoPies?r,i$
&
Njb r
Nsl
ir, . :
,l:l1.1 tt I'r I
II ,.
i !l
.'.,i-
:., :
1',
r:'

¶133

i & 2, i

¶134

F : !^.HIGH|COURT t. rx ,l,{*,1 ,lI ]f{!:: )H f),I), t: ) DATE D: 0911012023

¶135

¶136

i: , _1, ." , Itrjii,i t ,r:..j i;[:;[r I fi, : l; C'OnanaOrrfiOnoen? Iud t+-: . t{'[t'tr t1iTi irir l]S.', i TREVCINos.S, 9,,10,11'& 12 of 2008

¶137

I I I i .+ li' ;f^{'' '} 'H,Yi' l^-,i, ;...'i"l-ir + nlDlsrrlts=sINGtTHEtTREVC;Nd8 0f 2008 & r,'l i '^l:'. s'sfALuowl NG tTH EITREVC' N6',51^g In Or r t & 1 2 of 2008 ,: ': i' 'i lWruourica5lSii I ! l I Li

¶138

wry

M/S.Madhucon Project Limited v. Sales Tax Appellate Tribunal

Case brief

What is this about?

What did the court decide?

M/S.Madhucon Project Limited v. Sales Tax Appellate Tribunal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Telangana State Road Transport Corporation and Another Vs Koukuntla Padma and 6 Others

Apple Tree Educational Vs Commissioner of Central Tax

M/s. Pennar Industries Limited Vs Commercial Tax Officer

Principal Commissioner of Income Tax Vs Sri Nama Nageshwar Rao

Principal Commissioner of Income Tax Central Vs Sri Nama Nageshwar Rao

M/S.Madhucon Projects Limited Vs Sales Tax Appellate Tribunal