Dismissed

Srinivasa Resorts Ltd., Begumpet, Hyderabad v. the State of Ap., Commercial Tax Dept., and Another

Telangana HC1 Dec 2025WP/13863/2008

Case brief

AI extract

What is this about?

Hotelier challenged VAT assessment orders levying VAT on service tax collected from customers for catering, mandap and boardroom services, and questioned the validity of the advance-ruling provision. The High Court held the total bill amount constitutes sale price and dismissed both writ petitions, upholding penalty and interest levy.

What the court decided

AI extract

Srinivasa Resorts Ltd., Begumpet, Hyderabad Vs the… — GST and Indirect Tax | Telangana HC (2025)

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[^348e I

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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IMONDAY, THE FIRST DAY OF DECEMBER TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND

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THE HONOURABLE SRI JUSTICE SUDDALA CHALAPATHI RAO

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WRIT PETITION NOS: 1 AND 13864 0F 2008

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W.P.No.1 3 of 2008

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Between:

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SRINIVASA RESORTS LTD., BEGUIMPET, HYDERABAD, the Companies^Act, 1956, having its Registered office at 6-3-1187, Begumpet,Hyderabad-500016^rep.by its Financial Controller and Company Secretary Mr.S.Sankar.

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.....PETITIONER

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AND

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THE STATE OF AP., COMTMERCIAL TAX DEPT., Commercial Taxes .Department, Andhra Pradesh Secretariat Hyderabad.

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The CommercialTax Officer, Abids Circle, Abids Division, Hyderabad.

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.....RESPONDENTS

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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 more particularly a writ of or in the nature of mandamus or any other appropriate writ order or direction declaring that-^i.the impugned^order in Form VAT 305 dated 26.5.2008 assessing Values Added Tax issued^{by the} Respondent No.2 herein viz., the Commercial Tax offiber, Abids Circle,^Abids Division, Hyderabad is arbitrary, illegal, without^jurisdiction non est in^{law and} void ab initio and set aside the same ii. the^provisions of section 64(4xii) of^the AP Value Added TaxAct 2005 as arbitrary, and violative of Articles,14,.19(tXg) and 265 of the Constitution of lndia and thus unconstitutional iii Value^AddedTax

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under the AP Valued Added Tax Act 2005 shall not be levied on the service tax amount in the bills issued by the^petitioner to its customers.

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l.A.NO:1 OF 2008^{(WPMP.NO:17897} OF 2008)

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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 suspend the operation of the impugned order in Form VAT 305 dated 26.5.2008 assessing Value Added Tax issued by the Respondent No.2 herein viz the Commercial Tax officer, Abids Circle , Abids, Division, Hyderabad pending disposal of the writ petition.

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Counsel for the Petitioner : SRI G.V.S.GANESH

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Counsel for the Respondents : SRI SWAROOP OORILLA, SPL. GP FOR COMMERCIAL TAX

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W.P.NO:13864 OF 2008

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Between:

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SRINIVASA RESTORTS LTD., HYD., Companies Act, 1956.having its Registered Office at 6-3-1187, Begumpet, Hyderabad- 500 016, rep. by its Financial Controller and Company Secretary, Mr. S.Sankar.

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....PETITIONER

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AND

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THE STATE OF A.P., COMMERCIAL TAX DEPT., HYD. AND ANO., Taxes Department, A.P. Secretariat, Hyderabad.

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The Commercial Tax Officer, Abids Circle, Abids Division, Hyderabad.

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.....RESPONDENTS

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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, more particularly a writ of or in the nature of Mandamus, or any other appropriate writ, order or direction, declaring that- (i) the impugned order in Form VAT 305 dated 26-5-2008 assessing penalty and interest issued by the respondent No.2 herein viz., the Commercial Tax Officer, Abids Circle, Abids Division, Hyderabad, is arbitrary, illegal, without jurisdiction, non est in law and viod ab inition and set aside the same (ii) the provisions of Section 64(4xii) of the

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AP Value Added Tax Act, 2005 as arbitrary and violative of Article 14, 19(1Xg) and 265 of th eConstituion of lndia and thus unconstitutionall (iii) Vale Added Tax under the AP Value Added Tax Act, 2005 shall not be levied on the service tax amount in the bills issued by the petitioner to its customers and pass

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l.A. NO: 1 OF 2008(WPMP. NO: 17898 OF 2008)

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' Petition under Section 151 CPC praying that ih the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of the impugned order in Form VAT 305 dated 26-5-2008 assessing penalty and interest issued by the respondent No.2 herein viz., the Commercial Tax Officer, Abids Circle, Abids Division, Hyderabad, pending disposal of the writ petition.

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Counsel for the Petitioner : SRI G.V.S.GANESH

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Counsel for the Respondents : SRI SWAROOP OORILLA, SPL. GP FOR COMMERCIAL TAX

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The Court made the following COMMON ORDER

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THE HON'BLE SRI JUSTICE P.SAM KOSHY

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AND

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THE HON'BLE SRI JUSTICE SUDDALA CHALAPA'THI RAO

N 1

Dt.oL.t2.202s

Between:

Srinivasa Resorts Limited

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.... Petitioner

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And

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The State of Andhra pradesh and another.

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.@ @^{e r the H o n, b} te sri rustice sud.d ata.r.;,#liI,."*1i^" t " Since the petitioner ancl the lls involved^'in both the writ petitions is one and the sarne, they are being taken up for hearing together and disposed by this Common Order.

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W.P.No.13863 of 2OO8

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The writ^petition uicre wp.No.13g63 of 2o0g has been filed challenging the impugned order in Form VAT 3OS, dt.26.o'.20og issued by the 2"d respondent, whereby vAT was levied under the AP Value Added rax Act, 2oos (for short r/AT Act) on the service Tax collected by the petitioner from its customers by including the s€une as sale price under section 2(29) of vAT Act, and also the

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validity of Section 6a$l$i) of the VAT Act of the Advance Ruling uide reference No.AR.Corn/ 144 /2006, dt.13.1 1 .2006, as being arbitrary, violative of Article 14 of Constitution of India and principles of natural justice

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W.P.No.13864 of 2OO8

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The Writ Petition uide WP.No.13B64 of 2OO8 has been filed challenging the consequential impugned order issued by the !"a respondent levying penalty and interest on the VAT levied in Form VAT 305, dt.26.05.2008 on the Service Tax collected by the petitioner from its customers, as illegal, uoid-q.b-initio; prayed to set aside both the impugned orders of the 2"d respondent.

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Bfief^{facts of} both the writ^petitions:

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The petitioner is engaged in the business of setting up and running hotels and resorts and the petitioner owns and runs a Five Star Hotel in the n€une and style of ITC Hotel The Kakatiya - The Luxury Collection' at Hyderabad. The petitioner 15a registered dealer under the provisions of VAT Act uide TIN No.28880160409 and has been filing its return from time to time by paying tax to the authorities. Further, the petitioner deals with sale of food and beverages to its customers with the catalogues, as follows:

a) Sale to^{guests staying in the Hotel;}

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b) Sale to customers^{in the hotel rvho business the restaurants;and}

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c) Sale in^{the courseof providing catering services in the banquet} halls and business^{centers, u,hichare provided for organizingthe} business mectings,^{conferences, marriagesand other functions} along with^{food and othcr facilities'}

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5 It is further^{contendedby thelearned counsel forthe}

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petitioner that^{while sale transactionsunder item (a) and (b) are} mere sale of^{food/beverages,VAT was paid on food value, but} however, the transactions^{under item (c) involve both supply of} food and^{provision of services, for whichthe petitioner receives} lump-sum considerations^{basedon numberof persons attending} such meetings/functions,^{and the said lump sum consideration is} inclusive of^{chargestowardssupply of food and' beverages and'} also for the^{services, and thus the said amounts comprehensively} .ot.." ail the^{goods includingservices'}

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It is further^{contendedby the petitioner that at banquet} halls and business^{centersalong with food and beverages are} exigible to^{service tax under the head of 'Mandap KeeperServices"} and 'outdoor^{catering services'' Accordingly,the petitioner collects} and pays service^tax @^{L2.36 o/o ot:- the amountscharged to the} customers and thus, the said^{transactions are inclusiveof service} factor not merely sale of any^{food or beverages'}

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tt is further contended by the petitioner that as the services, food and beverages form total part of the sale transaction, the petitioner discharged its liability under the vAT Act by paying vAT on the 60'0/0 of the consideration charged towards supply of food and beverages, deducing the service tax amount and paid @ 12.5o/o as per Section a(9) of VAT Act.

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It is further contended that on 06.O2.2008 during the course of an audit conducted by the respondents authorities, books of accounts of the petitioner-company \vere verified and the 2nd respondent having found certain variations, issued notice of Assessment of VAT in Form 3054, dt.O7.03.2OO'8, stating that since the petitioner collected service tax from the customers, which is reflected in the bills issued to the customers, the petitioner is required to pay VAT on service tax in view of the interpretation of expression 'sale price' as defined under Section 2(29l' of the VAT Act r/w the definition of expression 'taxable turnover' under Section 2(38) of the VAT Act, as the totat amount set out in the sale bill except the amount of the VAT paid or payable, is taxable, including the service tax, and contends that it is ex facie illegal and capricious, as it amounts to levy of 'tax on tax', militating against the basic tenets of the taxation.

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It is further contended by the petitioner that the 2nd responderrt, who issued a purported notice of Assessment of VAT, also issued notice of penalty ancl Interest, both dt.07.03.2008 in Form vAT 3o5A, and the petitioner submitted its detailed reply, dt'2l'04.20O8 and also filed addicional submissions uicle Letter, dt.19.05.2oo8, with the 2nd respondent by categorically stating that in all the invoices, the service tax was shown separately, and in as much as the same is the amounts collected towar-ds service tax out of the fixed consideration received from the client/customers, the service tax so collected is not exigible to VAT tax and it amounts to double taxation and is violative of the provisions of the constitution of India and also violative of due procedures as contemplated under law.

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It is further contended by the petitioner that under the guise of Advance Ruling given by the Authority for Clarification uid"e proceedings ccTs Reference No.A.R.c omlg6 /2006, dt.26.o2.2oo7, in the case of M/s GAIL (India) Limited, Rajahmurdry, by which it was clarified that service tax, which is collected from the customers shall form paft of ,sale price, and is taxable turnover for the purpose of levy of vAT under the vAT Act, and also the provision of Sectio n 2(291of vAT Act, which defines

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'sale price', the 2.d respondent without appreciating the factual issues mentioned in the explanations, dt.2l.O4.2OO8 and dt.19.05.2008, has passed the impugned orders, dt.26.O5.2008, directing the petitioner to pay a sum of Rs.15,95,0LT /- towards VAT and Rs.3,90,6811- towards penalty and interest, within a period of (30) days of receipt of the said orders and thus, the orders passed by the 2nd respondent are violative of due procedures of law and against to the basic tenets of law it is that orders passed by the 2"d respondent, are assailed in the present writ petitions.

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1 1. The 2"d respondent filed counter affidavit inter alia contending that against the impugned assessment order, the petitioner has an efficacious alternative remedy of appeal under the provisions of the Act, and without availing such statutory remed5,, the petitioner has directly approached this Hon'ble Court under Article 226 of the Constitution of India, assailing the order of the assessment and consequential orders, which are not maintainable. Also contended that it is the settled position of law, as consistently held by the Hon'ble Apex Court and this Honble Court, that the extraordinary jurisdiction of this Court under

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Article 226 cannot be i,voked by surpassing the statutory remedies provided under the statute.

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t2. It is further contended that the Andhra pradesh General Sales Tax Act, lgsr, wtrich was in force from lgsz to 31.03.2005, was repealed and in its place the Andhra Praclesh Value Added Tax Act, 2005, was brotrght into force with effect from 01.04.2005. As per Section a(9) of the Act, every dealer running a restaurant, eating house, catering estabrishment, hotel, coffee shop, sweet shop or any similar establishment, and any club supplying food or other articles f<lr human consumption or d.rink, is liable to pay tax @^l2-5o/o on 60% of the ta-xabre turnover, and only the vAT collected under the said provisions of the VAT Act, is excluded.

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It is further contended that the petitioner being engaged in the business of estabrishing ancr operating hoters and resorts and a registered dealer under the Act, has been filing vAT returns as per the provisions of the vAT Act and there is no suppression or evasion of tax by the petitioner. The authorities upon verification of the books of accounts of the petitioner, found that the petitioner collected service tax from its customers and also reflected it in the invoices raised and has arso shown in the profit and ross accounts

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for the years 2005-06 and 2006-07 as expenditure and no suppression of tax is found by the authorities.

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It is further stated that as per the said provisions of the VAT Act, only such items as are specifically excluded therein are not includable in the sale price of goods and all other items of expenditure and statutory levies payable by the dealer form part of the sale price. Hence, the service tax collected by the petitioner from its customers is includable in the sale price for the purpose of levy of VAT, but the petitioner failed to pay VAT on the service tax component contending that such collections, being statutory in nature and remitted to the Government of India, do not form part of the sale price and contended that there is no impediment in the assessment order and the inference of this Court is unwarranted.

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The 2nd respondent placed reliance on a Full Bench judgment of this Hon'ble Court in State of Andhra Pradesh v. N. Ranga Rao and Sonst wherein it was held that the sales tax collected by the seller from the buyer forms part of the taxable

t 8 STC 114

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turnover, which rvas affirmed by the Honble Apex court in George oakes (P) ttd. v. state of Madras2 and a similar view was taken by the Apex court in centrar wines a. special croe. Further in

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A.P. Rural Deaelopment cess cq.sea it was held that cess paid on purchase of paddy forrns part of taxable turnover. In the light of these precedents and the ruling given by the Advance Ruling Authority, it is contended that the service tax collected from the customers forms part of the sale price ald is taxable turnover for the purpose of levy of VAT.

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It is further contended that the petitioner,s challenge to the constitutional validity of section 6z$l(iii) is invalid,, ultra utres arrd, is untenable in view of the judgment of the Honble Apex cotrrt in state of A.P. u. McDowell q.nd. co.s that an enactment can be declared unconstitutional only on two grounds, namely, (i) lack of legislative competence, or (ii) violation of fundamental rights or other constitutional provisions, and in the instant case, the Advance Ruling Authority is a statutory authority constituted under section 67 of the Act and there is no violation of any right,

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2 t2 sTc 476

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3 4 APSTJ 77

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4 32 APSTJ 107

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5 AIR 1996 SC 1627

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as such they are binding on subordinate authorities, however appealable before the competent forum. It is further contended that the writ petition is devoid of merit and liable to be dismissed.

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We have heard the submissions of Sri G.V.S.Ganesh, learned counsel for the petitioner and Sri Swaroop Oorilla, leanred Special Government Pleader for State Tax appearing for respondents/revenue

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Contentions of the oetitioner in W.P.No.13863 of 2OO8

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Insofar as the contention of the learned counsel for the petitioner that the instant writ petition relates to category (c), which involves supply of food along with provision of services such as catering, maintenance, and hall arrangements and as the consideration received being a lump-sum amount, it includes both the value of food and beverages, on one ptrt, and the service element, on the other part. Further, the service tax collected was remitted to the Government of India under the taxable heads "Mandap Keeper Services" and "Outdoor Catering Services" at the applicable rate of L2.36%. Therefore, only point which arises for consideration before us is, whether the service tax shown in the sum invoices, by segregating the sarne from the lump

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consideration, forms part of sale price. That since, the petitioner had already discharged VAT liability in terms of Section 4(9) of the vAT Act, by paying til( at l2.soh on 600/o of the gross consideration towards food and beverages, levy of vAT on the service tax component amounts to tax on tax'on the same transaction.

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Con of the in W.P. .13864 of 2008:

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Insofar as the lery of penalty and interest is concerned, learned counsel for the petitioner contended that the authorities failed to appreciate that the allegecl short payment arose purely due to inadvertence and not from any deliberate attempt to evade tax. It was submitted that the component of service tax was clearly and separately shourn in the invoices, evidencing bona fides^{on the part} of the petitioner. Reliance was placed on the judgments in Hindustan steel Ltd. v. state of orissa6, state of RaJastha,tt o. Jaipur udgog Ltd..z, and, Dilip N. shroff a. crr8, to contend that penalty cannot be imposed unless there is willful concealment or false representation. It was urged that where two possible views exist, penal provisions cannot be invoked.

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6 (re7ol 2s sTC 21 l(SC)

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? (1972l, 30 sTC s6s I (2OO7) 6 STC (SC) s2e

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Therefore, even assuming without admitting any liability, the imposition of penalty and interest without a categorical finding of deliberate evasion is wholly unsustainable, and the impugned order levying the same in W.P. No. 1386 4 of20o8 is liable to be set aside

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Learned counsel for the petitioner also placed reliance on the decisions of the Hon'ble Apex court in Imagic creqtiue (p) Ltd., v. commissioner of commercial Taxes & otherse, the decision of a Division Bench of the erstrvhile High Court of Andhra Pradesh in RAK ceramics (India) Priaate Limited., rep. bg its Finance controller, MNr. om Prakq.sh sg;mq.rkot qnd others. v. Assistant commissioner (cr)-w, enforcement wing, Hgderabq.dTo, the order of the Andhra pradesh raxation Special Tribunal in Indian commerce & rndustries co. pttt. :td. v. State of Andhra Pro,deshll and the order of the Andhra pradesh sales Tax & vAT Appellate Tribunal, Hyderabad in M/s Netqlim

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e (2008) 2 Supreme Court Cases 614

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10 2013(6) ALT 723 (DB)

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r1 TA.No.433 of 201 l, dt.O2.O7.2Ol2

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rrrigation Indio. (P) Ltd., Balanagar, Hgderq.bad a. The state of Andhra Pro,deshl2.

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Con of the ts in both the writ oetitions:

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Per contrq., the learned Special Government Pleader for State Tax appearing for the respondents/Revenue submitted that, in view of Sectio n 2(291of the vAT Act, the total amount set out in a bill of sale is taxable, and any sum charged by the dealer, regardless of its description, name or object thereof, forms part of the sale price. In the instant case, as the petitioner collected service tax from customers for supply of food and beverages under the heads of 'Mandap Keeper', 'outdoor cate.i.rg', and 'Boardroom sales', and included the same in the invoices issued. to the customers, 6O%o of the total consideration shown in the invoices is liable to vAT, except under the Explanation to Section 2(291of the VAT Act, the value-added tax charged or chargeable shall not form part of sale price and further it is contend.ed that as the VAT tax is only excludable in the total turnover and that in the audit onty it was found, the leqy of penalty and interest are proper and the judgments relied on by the petitioner are thus distinguishable on

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tz TA.No.545 of 2011, dt.1S.OS .2Ot3

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:.:

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. ! r;l:;:.1: . : !il,:;r:iliq;s.rs4 :i;IE*ii€

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facts of the present case and prayed to dismiss both the writ

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Petitions.

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lVe have given earnest consideration to the submissions on both sides and perused the record.

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The question that falls for consideration before us are:

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t) Whether the seruice tax, which was collected from the customers and shown separately in the inuoices, amounts to sale price and whether VAT is /o be leuied on the said amount of sales, shown in the inuoices?

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ii) Whether the imposition of penalty and interest bg the 2nd respondent utde order dated 07.03.2008, is corcect and propertg?

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24 Before going to determine the question of law fallen for our

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consideration, the provisions of Section 2(291 and 2{38) of VAT Act

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are extracted as follows:

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sSec 2(29): "Sale price" means:-

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(a) the total amount set out in the tax invoice or bill of sale; or

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(b) the total amount of consideration for the sale or purchase of goods as may be determined by the assessing authority, if the tax invoice or bill of sale does not set out correctly the amount for which the goods are sold; or

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(c) if there is no tax invoice or bill of sale, the total amount charged as the consideration for the sale or purchase of goods by a VAT dealer or TOT dealer either directly or through another, on his owrr account or on account of otJrers, whether such consideration be cash, deferred payment or any other thing of value and shall include,-

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(i) xxxx

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(ii) xxxx

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(ii0 xxxx

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Explanatlon-7:Subject to such conditions and restrictions, if any, as may be prescribed in this behalf, any cash or other

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discount on the price allowed i. respect of any sale and any amount refunded in respect of articles returned bt customers shall not be included in the sale price;

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Dxolanation-Il: For the purpose of determination of sale price and levy of value Added rax, the value Added Tax charged or chargeable shall not form part of SaJe price;

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)L\XX

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Sec 2(38): "Taxable turnover" means -

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the aggregate of sale prices ot all taxable goods.',

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Findinss in ItrIP.No. 1 3863 of 2OO8:

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The assessment years, which are disputed for collection of vAT, are from 2005 to 2008. There was an amendment for the definition of the "sale price" w.e.f., o1.o4.2o15, by which on the service tax collected separately, no VAT is applicable or payable. But, in the instant case, as the assessment years are before the said effective date of amendment, the said amendment would not be applicable to the present facts of the case.

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The case of the petitioner is that generaily the customers so far as category (c), pay the consideration in lump srrm, based on the number of persons attending the meetings or functions, which includes charges for both the supply of food ancl beverages and the provision of services.

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Although the petitioner separated the service tax in the invoices and paid VAT on 600/o of the turnover excluding service tax component, under the definition of "sale price" in Section 2(291 of the VAT Act, the total amount set out in the bill constitutes the sale price. The proutso under Explanation-ll of Section2l2gl of the VAT Act excludes only VAT charged or chargeable from the sale price, and not the service tax, and as such in our considered opinion, the total amount under the invoices including the service tax component is 'sale price', and VAT shoulcl be on the total turnover of 600/o as per Section a(9) of the VAT Act.

¶169

In Imagic Creqtiae (P) Ltd.'s case (supra), the Honble Apex Court observed that the contract under consideration was an indivisible contract, and consequently, the service component thereof was held to be liable to service tax, and not sales tax, on the incidental transfer of goods. The Court's conclusion was based on the fact that the contract did not separately identify the service and goods components. But, in the present case, service tax has been separately indicated in all invoices issued by the petitioner, but, however the amounts were paid in lump sum consideration, on which service tax was separately shown in the invoices. Further, as noted above, the prouiso to Explanation-ll of Section

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2{29!' of the VAT Act excludes only VAT charged or chargeable from the sale price, and does not extend to service ta-x. Therefore, the facts of the present case are distinguishable from those in Imagic Creqtiae (P) Ltd.'s case (supra), and it does not apply.

¶173

Since the petitioner received lump-sum amounts for the services rendered under "Mandap Keeper Services", "Outdoor Catering," and "Boardroom Sales", and included the same in the invoices, the total amount in the bill constitutes the sale price for the supply of food. Consequently, the petitioner is liable ro pay vAT on 60% of the consideration charged towards food and beverages, as provided under section 4(9) of the vAT Act and though the petitioner shown the service tax component separately by segregating from the lump sum consideration received from the customers, the total bill amount will be sale price.

¶174

Further, the Advance Ruling in the case of M/s GAIL (lndia) Ltd., Rajahmundry (CCT's Reference No.A.R.Corr-/86/2006, dt.26.O2.2OO7l has already clarified that service tax collected from customers forms part of the sale price and taxable turnover for vAT purposes, and the said advance ruling was not challenged within the prescribed period under section 64(4) of the VAT Act

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and it is therefore binding on both the authorities and the petitioner.

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The petitioner's challenge to the constitutional validity of Section 67(4)'(11l' of the VAT Act is untenable in the light of the judgments of the Honble Apex Court in McDowell and Co.'s case(supra) as well as this Court in consistently upholding the Vat Act, as there is no violation of the Constitution of India or the provisions of the Statue. Further, inasmuch as the advance ruling has not been challenged, the impugned order(fn WP.No.13863 of 2008) passed by the 2"d respondent is in accordance with the Advance Ruling and the statutory provisions, and thus, the reliance placed by the learned counsel for the petitioner on the decision of a Division Bench of the erstwhile High Court of Andhra Pradesh in RAK Ceramics (Indio,) Prtadte Llmiteds case(supra) is of no assistance to the case of the petitioner, being distinguishable on facts and in law.

¶179

Insofar as the reliance placed by the counsel for^{petitioner in} the decisions rend.ered by the Tribunal in Indioin^Commerce& Indu*ries Co. Ptrt. Ltd. and M/s Netafim lrrigation Indta^(P) Ltd.'s case (supra), it is well settled that the decisions of statutory

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tribunals, being quasi-judicial in nature, are binding on the parties before them but do not operate as binding precedent on this Court. while such decisions may be considered persuasive and may provide guidance in the interpretation of law, this court, in exercise of its constitutional and statutory jurisdiction, is not obligated to follow the conclusions of a Tribunal. This position is rooted in the principle of judicial hierarchy, whereby tribunals are under the supervision and control of High court, and the High court retains the power to examine, modify, or depart from the reasoning adopted by a Tribunal, particularly where questions of law or constitutional validity arise.

¶183

Further, in George oakes (p) Ltd.'s co,se (supra), relied upon by the learned Special Government pleader appearing for the respondents, the Honble Apex Court observed that in calculating the total turnover, there is no infirmity in treating tax as part of the turnover, since the term "turnover" refers to the amount of money which is turned over in the business. The court, therefore, upheld the decision of the Deputy commissioner in including the tax in the total turnover. The principles laid down in the said decision are sqLrarely applicable to the facts of the present case. In the instant matter, the assessee, though separately segrated

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service tax from the lump sum in the invoices raised, did not include the said amount of service tax in the calculation of total turnover, and therefore the rationale of George oakes (p) Ltd,s case(supra) applies to the facts of the instant case in favour of the respondents.

¶186

In view of the above findings, we are of the considered view, that there is no error or impediment in the orders passed by the 2'd respondent and the writ petitioner has not substantiated its case for interference of this Court and the Writ petition No.13s63 of 2008 is devoid of merit and is liable to be dismissed.

¶187

FindinEs in WP.No.13864 of 2OO8:

¶188

,Insofar as the lerry of penalty and interest by the 2"d respondent uide order dated 07.03.2008, directing the petitioner to pay ro%o of the tax as penalty along with interest at lo/o per month, it is contended by the learned counsel for the petitioner that non-payment of tax was neither willful nor deliberate and prayed to set aside the aforesaid order imposing penalty and interest.

¶189

As per Section 53 of VAT Act, any dealer, who has under declared tax, despite there being no fraud or wiltful neglect

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committed, is liable to pay penalty. For convenience sake, the said provision is reproduced as under:

¶194

"53- (1) where any dealer has underdeclared tax, and. where it has not been established that fraud or wittful neglect has been committed and where under-declared tax ii,-

¶195

0^{/ess than ten percent} of the tax, a penalty shall be imposed at ten percent of such under-d.eclared. tox;

¶196

(ii) more than ten percent of the tax due, a penarty shatt be imposed at twenty fiue percent of suchund.er-d.ecrared" tax.

¶197

(2) where ang dealer, prior to the detection by ana authority prescribed, uoluntarily declares that tax due for a tax period. is under-declared and he paas the tax due along with interest, no penalty shall be imposed prouided that such d.eclaration is mad.e within the time limit and in the manner prescribed".

¶198

(3) Any dealer who has under-declared" tax, and" uhere it ,. established that fraud or wiilful neglect lto,s been ammitted., he shall be liable to pag penalty equal to the tax und"er-d.eclared"; besides being liable for prosecution:

¶199

\ I

¶200

Prouided that before leuying penarty under this section, the authority prescibed shall giue the dealer a reasonable opportunity of being heard.

¶201

In vierv of the above provision of law and in the facts of the present case, in our considered view, there appea-rs to be no error committed by the 2"a respondent in passing the impugned ord.er,

¶202

¶203

dt.25.06.2008. Furthermore, the judgments relied upon by the petitioner are distinguishable on facts. In the cited cases, the disputes arose under the sales Tax Act and the Income Tax Act, whereas the present proceedings are governed by the VAT Act, which contains a specific statutory provision enabling the imposition of penalty even in the absence of fraud or willfu1 neglect. As such, we are not inclined to interfere with the order passed by the 2',d respondent in imposing penalty and interest, and the Writ Petition is liable to dismissed.

¶204

Conclusion:

¶205