VENKATARAMANA TRADING COMPANY Vs. COMMERCIAL TAX OFFICER GUDUR

JUDGEMENT

(1.) These two writ petitions raise a common question and can be disposed of together.

(2.) W.P. No. 3922 of 1977 is filed for the issue of a writ of certiorari quashing the assessment order passed in G.I. No. 10722/71-72 dated 14/03/1975, confirmed in appeal on 30/03/1976, by the Assistant Commissioner (CT) (Appeals), Guntur, and to direct the authorities to levy the tax in accordance with law.

(3.) For the assessment year 1971-72 the petitioner returned a turnover of Rs. 2,68,947.15. The assessing officer determined the net turnover at Rs. 14,81,792.88 by adding the excise duty paid by M/s. Ananda Rao & Company of Nellore directly into the treasury, to the taxable turnover of the petitioner. The petitioner preferred an appeal to the Assistant Commissioner and disputed the levy of sales tax on the amount of excise duty added to the taxable turnover but the appeal was dismissed by the Assistant Commissioner by following a judgment of this Court in Shaw Wallace & Co. Ltd. v. State of Andhra Pradesh (T.R.C. Nos. 27 and 28 of 1974) reported in [1976] 37 STC 448 which held that the assessing authorities could add such excise duty to the taxable turnover. The petitioner stated in his affidavit that he did not prefer any further appeal to the Tribunal as he was under a bona fide and mistaken impression that the tax was leviable by including the excise duty in the turnover and that the department was also labouring under the same mistake. Subsequently the petitioner came to know that the judgment of the High Court in Shaw Wallace & Co. Ltd. v. State of Andhra Pradesh [1976] 37 STC 448 was overruled by the Supreme Court in the judgment in McDowell and Co. Ltd. v. Commercial Tax Officer [1977] 39 STC 151 (SC). The petitioner stated that the judgment of the Supreme Court was reported in the STC on 15/02/1977, that he immediately approached his chartered accountant for necessary action, and applied for certified copies of the orders of assessment as well as the appellate order inasmuch as the original assessment order was filed in the appeal and the appellate order was misplaced. Thereafter he preferred this writ petition on 8/09/1977.