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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
RAMESH RANGANATHAN, M.GANGA RAO, JJ.
Syed Zameer - Petitioner
Versus
The Deputy Commissioner Tax Officer and others - Respondents
WRIT PETITION NO.13560 OF 2015
Decided On : 31-01-2018
APGST Act, 1957 – Declare the demand notice - Alleged arrears of Sales Tax - Arbitrary, illegal, unjustified and contrary to the provisions - Proprietary concern hitherto engaged in the business of chillies, was registered as a dealer - Paid taxes regularly till the year 2008 when the entire accounts, along with the original challans of sales tax paid by him, were gutted in the fire which broke out in Guntur Mirchi yard; he had, thereafter, discontinued his chilli business and was, as at present, not carrying on any other business; the first respondent suddenly issued a demand notice - As arrears of sales tax he had, thereafter, made a representation to the 1st respondent stating all the facts; no action was taken on the representation; instead of disposing of his representation, the first respondent was threatening him to make payment of arrears of sales tax; and on the advice that the demand notice, issued in Form No.IV was barred by limitation as per the APGST Act, he was invoking the jurisdiction of this Court - Held, In the absence of any statutory requirement in this regard, the contention that a common demand notice, for four assessment years, cannot be issued, does not merit acceptance. It is only on an assessment being made, and the tax liability determined, can a demand be raised for payment of the assessed tax. As no demand could have been raised even without an assessment order being passed, the contention that the period of four years should be computed from the end of the assessment year, and the demand notice was issued 11 years thereafter, is not tenable. The contentions that, since the demand notice was issued in 2014 for the tax due for the assessment years the assessment orders are ante-dated, there is no explanation for not issuing the demand notices separately for each assessment year and for the inordinate delay of 11 years in issuing the demand notice for recovery of CST, are urged for the first time in the reply affidavit filed by the petitioner, and since these contentions, which are not pleaded in the writ affidavit, could not have been rebutted by the respondents in their counter-affidavit filed earlier, these contentions cannot be examined in these Writ proceedings - Writ Petition must be, and is accordingly, dismissed.
Key Points: - The petition challenges a Form No.IV demand dated 08.12.2014 for CST arrears for 2002-2003 to 2005-2006; court holds demand notice cannot be raised without an assessment order and rejects arguments about four-year aggregation. [2000491110001][2000491110029] - Assessments for CST 2002-03 to 2004-05 were within three-year limitation under APGST; 2005-06 under AP VAT with four-year limit; orders dated within those periods. [2000491110022][2000491110023][2000491110025] - Petitioner's claims of non-service or improper service of assessment orders and alleged malafides were rejected; court notes these defenses were raised late and not properly pleaded. [2000491110024][2000491110031][2000491110032][2000491110044] - Court concludes demand notice issued after several years is not necessarily unlawful where there is no statutory prohibition on such recovery mechanism and where assessment orders exist. [2000491110051][2000491110052] - Writ petition dismissed; miscellaneous petitions dismissed without costs. [2000491110053]
Ramesh Ranganathan, J.
1. The relief sought for, in this Writ Petition, is to declare the demand notice in Form No.IV dated 08.12.2014, for alleged arrears of Sales Tax for the years 2002-2003, 2003-2004, 2004-2005, 2005-2006, as arbitrary, illegal, unjustified and contrary to the provisions of the APGST Act, 1957.
2. The petitioner, a proprietary concern hitherto engaged in the business of chillies, was registered as a dealer vide TIN No.28770102633. It is his case that he had paid taxes regularly till the year 2008 when the entire accounts, along with the original challans of sales tax paid by him, were gutted in the fire which broke out in Guntur Mirchi yard; he had, thereafter, discontinued his chilli business and was, as at present, not carrying on any other business; the first respondent suddenly issued a demand notice in Form No.IV on 08.12.2014 asking him to pay Rs.1,86,84,620/- as arrears of sales tax for the years 2002-2003, 2003-2004, 2004-2005 and 2005-2006; he had, thereafter, made a representation to the 1st respondent on 22.01.2015 stating all the facts; no action was taken on the representation; instead of disposing of his representation, the first respondent was threatening him to make payment of arrears of sales tax; and on the advice that the demand notice, issued in Form No.IV dated 08.12.2014, was barred by limitation as per the APGST Act, he was invoking the jurisdiction of this Court.
3. The impugned demand notice in Form No.IV, a copy of which is filed along with the Writ Petition, is addressed to the petitioner as the proprietor of Vishnu Priya Chillies Traders. The petitioner was thereby called upon to pay Rs.1,86,84,620/-, towards arrears of sales tax due for the years mentioned in the table, within fifteen days from the date of service of the notice. The table, in the demand notice, refers to the amount due under the CST Act for the years 2002-2003, 2003-2004, 2004-2005 and 2005-2006 i.e., for a total sum total of Rs.1,86,84,620/-. In his representation dated 22.01.2015, a copy of which is also enclosed along with the Writ Petition, all that the petitioner has stated is that he had received a demand notice on 08.12.2014 calling upon him to pay Rs.1,86,84,620/- as arrears of sales tax for the years 2002-2003, 2003-2004, 2004-2005 and 2005-2006; he had already paid sales tax for these years, and the original challans were gutted in the fire which broke out in Guntur mirchi yard in the year 2008; and he had, thereafter, discontinued his business. The petitioner requested the Deputy Commercial Tax Officer to verify the sales tax payment for the relevant years, give him an opportunity of hearing, and keep the demand notice dated 08.12.2014 in abeyance till then.
4. This Writ Petition was filed on 28.04.2015. A Division bench of this Court, in its order dated 01.05.2015, took note of the submission of the Learned Government Pleader for Commercial Taxes that separate assessment orders were passed in accordance with law, and the said orders were served on the petitioner. At the request of the Learned Government Pleader, for grant of time to produce the record before the Court, the matter was directed to be listed after vacation. On 22.06.2015, as the Government Pleader sought further time to produce the records, a Division bench of this Court, considering the fact that auction of the petitioners properties was scheduled to be held on the same day, directed stay of auction until further orders.
5. Subsequently, by its order dated 01.12.2015, a Division Bench of this Court directed that, as no one had appeared for the petitioner on 30.11.2015, the matter be listed under the caption ‘for dismissal'. As, even on 01.12.2015, neither was the Counsel for the petitioner present nor was there any representation on his behalf, the Writ Petition was dismissed for non-prosecution. Thereafter an application was filed in WPMP No.57714 of 2016 to restore W.P. No.13560 of 2015 to file by setting aside the order dated 01.1
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