VASAVI GENERAL STORES Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THE appellant M/s. Vasavi General Stores, Kothagudem, filed an appeal against the order of Joint Commissioner (Legal), Hyderabad, dated 27.3.1999 in CCT's Ref.L.III(3)/1122/98. The appellant has stated that the Commercial Tax Department inspected their business premises in 1987 and a show cause notice was issued after a gap of 5 years in 1992 in this matter. The present order is against the revision order of the Joint Commissioner (Legal) Hyderabad who set aside the order of the Appellate Deputy Commissioner. The A.D.C., passed order dated 6.4.1995 remanding the matter to the assessing authority for given one more opportunity to produce sufficient evidence to prove that a proposed suppressed turnover was not correct. He directed the assessing authority to verify all the transactions with reference to the inspection report and if satisfied to give relief according to the Act and Rules. The assessing authority, however, failed to pass any consequential order consequent to the order of Appellate Deputy Commissioner. However, as the matter stood thus, the Joint Commissioners (Legal), revised the order of the Appellate Deputy Commissioner on 27.3.1999. The appellant has first and foremost argued that the Joint Commissioner's order is bad in law. This is so, because the order of the A.D.C., remanding the matter back to the assessing authority was not in any case prejudicial to the interests of revenue. The revision ought to have been taken up by the Joint Commissioner only if the order of the Appellate Deputy Commissioner is found to be clearly prejudicial to the interests of revenue. A remand order directing the lower authority to re -examine the matter without giving any specific directions is not prejudicial to revenue as per the appellant. Therefore, the revision order of the Joint Commissioner ought to be set -aside because it is bad in law. The consequential order U/s. 24A was not passed within 3 years. In fact, the appellant has submitted that no consequential order has been passed till date. Therefore, to save the situation for the Department and to cover up the negligence of the assessing authority, the Joint Commissioner (CT), revised the order of the A.D.C., The appellant has, therefore, pleaded for the same to be set -aside.

(2.) THE learned State Representative has, however, stated that this is a clear case of tax evasion. No proper accounts were kept by the appellant, loose slips were found which indicated suppression of turnover and based on an inspection the show cause notice was issued. The learned State Representative has also stated that the consequential order could not be passed by the assessing authority as the appellant went on delaying the matter by asking adjournment after adjournment. Therefore, the learned State Representative has justified the revision of the Appellate Deputy Commissioner's order by the Joint Commissioner. Having heard both sides, we have observed that the learned State Representative is not able to rebut the argument of the appellant that even now no consequential order has been passed by the assessing authority. Merely stating that the consequential order could not be passed because the appellant went on asking adjournment after adjournment is untenable. The departmental authorities are not helpless. The A.D.C., had not directed the assessing authority to keep giving adjournments till infinity. Nothing prevented the assessing authority to pass an order against the appellant when the appellant started adapting delaying tactics. However, it seems that the Joint Commissioner (Legal) is trying to cover up the negligence of the assessing authority by revising the order of the A.D.C., which in no way can be said to be prejudicial to revenue. The order of the A.D.C., has simply remanded the matter back to the assessing authority for giving one more opportunity to the appellant to present his case before him. Such an order cannot be said to be prejudicial to revenue. As a consequence of the order of the A.D.C., the matter still lay in the hands of the Departmental Authorities who could have called upon the appellant to present his case and if the appellant failed to do so or started indulging in delaying tactics, an adverse order could have been passed, but the same was not done. As a result, the Joint Commissioner (Legal) taking up the cause of the Department decided to revise the order, which was in no way prejudicial to the revenue or to the interests of the Department. On point of law, therefore, we are in agreement with the appellant's argument that the revision made by the Joint Commissioner (Legal) is bad in law. We, therefore, have no hesitation in setting aside the orders of the Joint Commissioner (Legal) on the ground of non -maintainability as the order being revised is not prejudicial to revenue.