JUDGMENT :

Joymalya Bagchi, J.

1. Petitioner has approached this Court assailing the endorsement dated 9.2.2021 passed by the 2nd respondent refusing to rectify/reopen the assessment order dated 29.2.2020.

2. Petitioner-assessee claims to be engaged in the business of export of barites and other minerals outside India. It filed CST return for turnover of Rs. 53,69,56,929/- with ‘NIL’ tax liability. On 13.8.2019 a show-cause notice was issued by the 2nd respondent upon the petitioner-assessee proposing to levy tax at the rate of Rs. 2,68,47,846/- on the premise the assessee had not submitted requisite Forms ‘H’ with regard to inter-state sale for exports covered under Section 5(3) of the Central Sales Tax Act (for short ‘the CST Act’). Thereafter, notice for personal hearing was also issued upon the petitioner-assessee, but it not participated in the hearing. Accordingly, assessment order dated 29.2.2020 based on best judgment method was passed imposing the aforesaid tax liability. The order was sent to the assessee in June, 2020 but, the petitioner-assessee did not pay the said tax. As a result recovery proceedings were initiated against it. At that stage, the petitioner-assessee made an application before the 2nd respondent seeking rectification/reopening of the assessment. By the impugned endorsement dated 9.2.2021 such prayer was turned down, which has been assailed before us.

3. Sri Balaji, learned Counsel, representing Sri Avinash Desai, learned Counsel appearing for the petitioner, submits that his client was unable to participate in the assessment as the notice had not been communicated to the management by the accountant concerned. He further submits due to the prevailing pandemic, steps could not be taken against the order of assessment. He also submits that the assessing officer had wholly misdirected himself by referring to Section 5(3) of the CST Act with regard to the exports directly affected by the petitioner-assessee, which is covered under Section 5(1) of the said Act. There is no necessity to submit ‘H’ declaration forms with regard to direct exports exempt under Section 5(1) of the Act. Thus, the assessing officer erred in law in imposing the tax liability on the ground of non-filing of ‘H’ declaration forms.

4. On the other hand, the shipping bill of export, bill of lading, packing list and bank realization annexed to the rectification application would show that the sales were wholly exempt as direct exports under Section 5(1) of the CST Act. Such an error being apparent on the face of record, it was incumbent on the part of the 2nd respondent, to reopen the assessment.

5. In rebuttal, learned Government Pleader for Commercial Taxes submits that Rule 60 of the A.P. Value Added Tax Rules (for short ‘the Rules’) permit the authority to rectify clerical and arithmetical mistakes only. Neither in the decision cited in the rectification application nor in any of the decisions referred to therein, there is any declaration of law that Rule 60 of the Rules permits reopening of assessment for the purpose of consideration of documents not submitted by the assessee. He further submits that the order is an appealable one. Hence, the writ petition is not maintainable.

6. We have considered the materials on record, particularly, the documents submitted alongwith the rectification application filed by the petitioner-assessee.

7. The said documents prima facie show that the petitioner-assessee was a direct exporter and not a dealer, whose prior sale would be exempt from tax under Section 5(3) of the CST Act. However, such issue ought to have been brought to the notice of the assessing officer in the first instance when notice was served upon the petitioner-assessee. Explanation given by the petitioner-assessee for its failure to do so, namely, non-communication between the accountant and the management of the petitioner-assessee is not very convincing. Subsequent delay in taking steps due to the covid pandemic however merits cons