IDEAL DETONATORS PRIVATE LIMITED Vs. GOVERNMENT OF TELANGANA

JUDGEMENT

(1.) THE relief sought for in this Writ Petition is to declare the assessment order dated 28.02.2009 passed by the 3rd respondent, without considering the statutory declaration C Forms, as contrary to Section 9(2) of the Central Sales Tax Act (CST Act for short) read with Rule 2(c)(i) of the CST (A.P). Rules and Section 21(5) and Rule 59 of the A.P. VAT Act and Rules, 2005 respectively as arbitrary and illegal. The proceedings of the 2nd respondent dated 19.06.2014 rejecting the petitioners appeal, on the ground of belated payment of 12.5% of the disputed tax beyond the prescribed period for filing the appeal under Section 31 of the A.P. VAT Act, is also questioned as illegal and without authority of law.

(2.) THE petitioner, a limited company, is an assessee on the rolls of the 4th respondent and is a registered dealer both under the A.P. VAT Act and the CST Act. Pursuant to an audit of the petitioner undertaking on 18.02.2008, the 3rd respondent issued show cause notice dated 30.12.2008 proposing to levy a higher rate of tax on a turnover of Rs.10.78 crores on the ground that concessional rate of tax could not be allowed as the petitioner had not filed the C declaration forms. An assessment order came to be passed on 28.02.2009. Aggrieved thereby, the petitioner preferred an appeal on 03.04.2009 which was rejected by the 2nd respondent, by his order dated 19.06.2014, on the ground that he, as the first appellate authority, could not consider admission of an appeal if the appellant failed to produce proof of payment of the admitted tax, and 12.5% of the disputed tax, within sixty days from the date of receipt of the assessment order including the condonable delay period of thirty days; as the petitioner had paid the amount, 478 days after receipt of the order of assessment, the delay could not be condoned and the appeal could not be admitted; as held in M/s. Zuari Cements Limited v. State of A.P., a statutory authority could not deviate from the prescribed statutory requirement; a Division Bench of the High Court, in Ankamma Trading Company v. The Appellate Deputy Commissioner, had held that admission of an appeal, filed before the Appellate Deputy Commissioner, was liable for rejection if payment of the admitted tax/12.5% of the disputed tax was made beyond the period of sixty days from the date of receipt of a copy of the assessment order; and as the petitioner had failed to comply with the prescribed statutory requirement, while filing a statutory appeal under Section 31 of the A.P. VAT Act, the appeal preferred by them could not be admitted. Accordingly, admission of the appeal was rejected.

(3.) ACCORDING to the Learned Counsel the judgments of this Court, in Ankamma Trading Company2, and M/s. S.E. Graphites Pvt. Ltd.,4 are now subjudice before the Supreme Court; when an SLP is filed, challenging the orders passed by any Court or Tribunal, the said judgment of the Court/Tribunal ceases to operate, whether or not leave is granted, and whether or not operation of the judgment of the Court/Tribunal is stayed; as the Supreme Court has granted leave, admitted the appeal and stayed recovery in M/s. S.E. Graphite Pvt. Ltd4, the correctness or otherwise of both the aforesaid judgments of this Court is wide open; the Supreme Court is entitled to examine both questions of fact and law; in such circumstances, the correctness of the judgment, in Ankamma Trading Company2, is also in jeopardy; and as the judgments in Ankamma Trading Company2 followed in M/s. S.E. Graphites Pvt. Ltd.,4 are both subjudice before the Supreme Court, and interim relief has been granted therein directing the respondent officials not to take coercive action for recovery of the amounts, this writ petition should also be admitted, and collection of the disputed tax stayed, pending disposal of the Civil Appeal filed by M/s. S.E. Graphites Pvt. Ltd. Learned Counsel would rely on Union of India v. West Coast Paper Mills Ltd.; and Ranjith Impex v. Appellate Deputy Commissioner (CT).