w w w . L a w y e r S e r v i c e s . i n



M/s. Golden Granites, Ongole v/s Assistant Commissioner (State Tax), Ongole & Others

    W.P. No. 19320 of 2020

    Decided On, 04 December 2020

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE C. PRAVEEN KUMAR & THE HONOURABLE MR. JUSTICE M. GANGA RAO

    For the Petitioner: S.Krishna Murthy, Advocate. For the Respondents: G.P. for Commercial Tax.



Judgment Text

C. Praveen Kumar, J.

1. The present Writ Petition came to be filed to declare the action of the 2nd Respondent in rejecting the appeal, vide proceedings dated 30.7.2020, for the assessment year 2012-2013, under the Central Sales Tax Act, on the ground that the petitioner failed to pay 12.5% of the disputed tax along with the appeal, as illegal, arbitrary and violative of settled principles of law.

2. The brief facts of the case are as under:

The petitioner is a partnership firm engaged in the business of extracting rough granite blocks from the mines, and export the same to other countries. For the assessment year 2012-2013, the 1st respondent completed the petitioner’s assessment vide proceedings dated 23.3.2017 levying tax @ 14.5% against export sale of granite blocks for want of ‘H’ forms. The petitioner filed applications dated 27.2.2018 & 19.11.2019 requesting the authorities to consider H-Forms filed at that point of time. On 21.11.2019, an endorsement came to be made by the Assistant Commissioner, Ongole I Circle, after taking into consideration the representations made, rejecting the request of the petitioner stating that as per the instructions of the Government in Memo.No.REV./35024/ 12/2016-CT-II (I) dated 30.4.2016, the declaration forms filed cannot be accepted after the assessment. With the said endorsement, the declaration in Form-H was returned to dealer. Challenging the same, the petitioner preferred an appeal before the Appellate Deputy Commissioner (CT), Tirupati, who, vide order dated 30.7.2020, refused to admit the appeal on the ground that the petitioner failed to pay 12.5% of the disputed tax along with the appeal. Challenging the same, the present Writ Petition came to be filed.

3. Sri S.Krishna Murthy, learned counsel appearing for the writ petitioner, would submit that the issue involved is no more res integra and it is covered by the orders of the Division Bench of this Court in Writ Petition No.5368 of 2020 and Writ Petition No.12362 of 2019.

4. However, the same is opposed by the learned Government Pleader. According to him, if applications of this nature are allowed, Section 31 of A.P. VAT Act would have no meaning. Relying upon second proviso to Section 31(1) of A.P. VAT Act, learned Government Pleader would submit that an appeal preferred cannot be admitted unless the dealer produced proof of payment of tax admitted to be due or tax instalments as granted. In the absence of the same, he would submit that, the authority was right in rejecting the request of the petitioner. He would further submit that if the request of the petitioner is accepted, it virtually amounts to re-opening of the assessment and since it relates to payment of tax, the authority was right in insisting on payment of 12.5% of the disputed tax while admitting the appeal.

5. The point that arises for consideration is, whether the appellate authority was right in rejecting the appeal of the petitioner for want of payment of 12.5% of the disputed tax.

In order to appreciate the same, it will be appropriate to extract Sections 31(1), 31(2) and 31(3)(a) of A.P. VAT Act and which are as under :

“Section 31 (1) Any VAT dealer or TOT dealer or any other dealer objecting to any order passed or proceeding recorded by any authority under the provisions of the Act other than an order passed or proceeding recorded by an Additional Commissioner or Joint Commissioner or Deputy Commissioner, may within thirty days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed :

Provided that the appellate authority may within a further period of thirty days admit the appeal preferred after a period of thirty days if he is satisfied that the VAT dealer or TOT dealer or any other dealer had sufficient cause for not preferring the appeal within that period :

Provided further that an appeal so preferred shall not be admitted by the appellate authority concerned unless the dealer produces proof of payment of tax admitted to be due, or of such instalments as have been granted, and the proof of payment of twelve and half percent of the difference of the tax assessed by the authority prescribed and the tax admitted by the appellant, for the relevant tax period, in respect of which the appeal is preferred.

(2) The appeal shall be in such form, and verified in such manner, as may be prescribed and shall be accompanied by a fee which shall not be less than Rs.50/- (Rupees fifty only) but shall not exceed Rs.1000/- (Rupees one thousand only) as may be prescribed.

(3)(a) Where an appeal is admitted under sub-section (1), the appellate authority may, on an application filed by the appellant and subject to furnishing of such security or on payment of such part of the disputed tax within such time as may be specified, order stay of collection of balance of the tax under dispute pending disposal of the appeal;”

6. From a reading of the above provisions it is clear that any VAT dealer objecting to “any order” passed or proceeding recorded by any authority under the provisions of the Act other than an order passed by Additional Commissioner or Joint Commissioner or Deputy Commissioner, may within 30 days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed. It is to be noted here that the word used is ‘any order’ passed and not ‘order of assessment’. Hence, the argument of the learned Government Pleader that appeal itself may not lie cannot be accepted. The word ‘any order’ referred to in Section 31(1) cannot be limited to only assessment orders. If that was the intention of the legislature, the same would have been incorporated therein. In the absence of the same, we are of the view that the endorsement made by the Assistant Commissioner on 21.11.2019 can be challenged in an appeal.

7. The next issue is with regard to payment of 12.5% of the difference of tax assessed by the authority prescribed. A reading of material placed before the Court does not show that the dispute or the lis between the parties was with regard to payment of any tax or collection of difference of tax or the penalty imposed therein. In fact, the counsel for the petitioner submits that he is not disputing, at this stage, any tax liability or interest or penalty, but, his request before the authority, at this stage, is only to consider Form-H, which he has received at a belated stage. It is no doubt true that there is a delay in making an application before the authority concerned for accepting the Form-H, but, the request before the authority was only to receive Form-H, which he has received at a belated stage, but the same was rejected. The same does not relate to collection of tax or payment of tax as the assessment was complete and the same was not challenged.

8. Further, the proviso categorically states that an appeal shall not be admitted by the appellate authority unless the dealer produced proof of payment of tax admitted to be due and proof of payment of 12.5% of difference of tax assessed by the authority prescribed and the tax admitted by the appellant for the relevant tax period in respect of which appeal is preferred. Here the appeal does not relate to imposing tax for the relevant tax period, but for a different purpose i.e., refusing to accept ‘H’ Form. Therefore, we are of the view that insisting on payment of 12.5% of difference of tax may not be proper. In other words, as observed by the Division Bench of this Court in W.P.No.12362 of 2019, dated 13.9.2019, pre-deposit of the part of the disputed tax is required only when the appea

Please Login To View The Full Judgment!

l is filed against the assessment order, and since no tax is quantified under the endorsement, insistence on payment of 12.5% of the disputed tax as a condition precedent for entertaining the appeal would be improper and unsustainable. 9. Having regard to the above and in view of the orders passed by this Court in the writ petitions referred to above, the Writ Petition is allowed and the impugned order is set aside, directing the 2nd respondent – Appellate Deputy Commissioner (CT), Tirupati, to entertain the appeal of the petitioner against the endorsement of the 1st respondent – Assistant Commissioner (ST), Ongole I Circle, dated 21.11.2019 and deal with the appeal without insisting on payment of 12.5% of tax, in accordance with the law. No order as to costs. Consequently, miscellaneous petitions pending, if any, shall stand closed.
O R