SANMATHI UDYOG HYDERABAD Vs. COMMERCIAL TAX OFFICER HYDERABAD

JUDGEMENT

(1.) The petitioner questions the penalty orders dated 3-11-1999 and 5-11-1999 passed by the second respondent for the years 1991-92 and 1992-93 in purported exercise of power under Section 7-A(2) of the Andhra Pradesh General Sales Tax Act on the ground that the petitioner-assessee pressed into service fake bills and fabricated entries in the books of accounts to support the claim for exemption on the score of being a second seller. Earlier, the second respondent revised the assessments for the years 1991-92 and 1992-93 by his orders dated 22-3-1997 and 20-5-1997 in exercise of his powers u/s.20 read with Sec.l4(4-C) of the Act and withdrawing exemption granted by the assessing authority (first respondent). As a sequel to these orders passed in exercise of revisional power, the impugned penalty orders were passed subsequently.

(2.) It is clear from sub-section (2) ofSection 7-A of the A.P.G.S.T. Act that the power thereunder can be exercised only by the assessing authority. 'Assessing authority' is defined to mean any person authorised by the State Government or by any other authority empowered by the Government in this behalf, to make any assessment in such area or areas or the whole of the State of Andhra Pradesh. The asessing authorities are notified under G.O.Ms. No.1091, Revenue, dated 10-6-1957 read with G.O.Ms. No.728, Revenue, dated 14-7-1970 etc. Deputy Commissioner is not one of the notified assessing authorities. However, the Deputy Commissioner is empowered to make a reassessment under Section 14(4) read with Section 14(4-C) under certain circumstances. Section 14(4-C) lays down that the power conferred by sub section (4) on the assessing authority may be exercised by any of the authorities higher than the assessing authority including the Deputy Commissioner etc. That means the power under sub-section (4-C) of the Act is a special power conferred on the Deputy Commissioner as he is an authority higher than the assessing authority. The Deputy Commissioner exercising power under Section 14(4-C) does not conform to the definition of assessing authority, but, he is an authority higher than the assessing authority specially empowered in that behalf. The authority which exercises powers under Section 14(4) is empowered to levy penalty under sub-section (8) read with sub-section (4) at the rate prescribed therein. The penalty provision embodied in Section 7-A(2) is a distinct provision and it is undisputedly different from the penalty provision contained in sub-section (8) of Section 14. At the risk of repetition it must be stated that it is only the assessing authority who is invested with the power of assessment that can pass an order under Section 7-A(2) levying the penalty. The second respondent is not such an authority. Therefore, the impugned orders levying penalty are without jurisdiction.

(3.) There is one more aspect whichdeserves to be noted. If it is construed that the Deputy Commissioner has authority to levy penalty under Section 7-A(2), the assessee will be left without remedy to question the same in appeal, inasmuch as Section 21(1) does not provide for an appeal against the orders passed by the Deputy Commissioner under Section 7-A. The obvious reason for not providing such appeal is that the Legislature never intended that the Deputy Commissioner should assume the power of the assessing authority under Section 7-A(2).