THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE SUDDALA CHALAPATHI RAO WRIT PETITION No.927 of 2008 ORDER : (per Hon’ble Sri Justice P.Sam Koshy)

Mr.Karthik Ramana Puttamreddy, learned counsel for the petitioner and Mr.T.Chaitanya Kiran, learned Assistant Government Pleader representing Mr.Swaroop Oorilla, learned Special Government Pleader for State Tax, for the respondent.

2. The instant Writ Petition has been filed assailing the order passed Assessing Officer for the assessment year 2003-04, dated 28.03.2007. The assessment order has been directly challenged by the way of writ petition ignoring the statutory remedy of appeal. The writ petition was admitted for hearing as early as on 23.01.2008 and interim stay was also granted on a condition of the petitioner depositing a sum of Rs.20,00,000/- within a period of three weeks.

3. The contention of learned counsel for the petitioner is that the conditional interim order was passed and the remaining part of the order was stayed till date. The challenge to the assessment order is made primarily on the ground that the order is one which is barred by limitation and that the order is also one which, apparently is an ante dated order that was passed by the Assessing Officer. The petitioner establishment is one which is involved in the business of software exports. The petitioner develops software and thereafter, it is exported through the Software Technologies Park of India. The petitioner falls under exemption category Section 5 (1) of the Central Sales Tax Act, 1956. The nature of business carried out by the petitioner i.e. business software export was one which was an exempted category. In due course of time, the petitioner’s business was subsequently taken over by another establishment namely: Convergys India Services Private Limited with effect from December, 2005 onwards. The respondent issued a show-cause notice directing the petitioner to provide materials to substantiate the income received from software development and from export mode to foreign countries so as to avail exemption. The show-cause notice is said to have been issued on 01.02.2007. As per the contents of the counter filed by the Department, the show cause notice was also effectively served upon the petitioner. As the notice sent came back with an endorsement “addressee left”. The show- cause notice thereafter was served by way of affixing on the petitioner’s last known address of residence in terms of Rule 58 of Andhra Pradesh General Sales Tax Rules, 1957 (for short “the APGST Rules). Subsequently, the assessment order itself was passed by the Assessing Officer raising a demand of Rs.1,92,85,445/-. The order reflects the date to be 28.03.2007. The order was finally served upon the petitioner on 20.12.2007. There was a heavy gap in between so far as service of order on the petitioner. This according to the petitioner, prima facie, reflects the order to be an ante dated order. It was also the contention of the petitioner that apart from the fact, it is an ante dated order, the respondent has also not adhered to the recognized mode of service of notice and order under Rule 58 of the APGST Rules, which also the petitioner contended that sufficient to draw an adverse inference against the respondent, so far as the impugned order being ante dated order.

4. The learned counsel for the petitioner referred to paragraph Nos.6 and 7 of the counter filed by the Department to highlight certain discrepancies, so far as the date of order, the date of dispatch and the date of service is concerned. Likewise, the petitioner’s Counsel also referred to Rule 58 highlighting that the mode of service chosen by the Department i.e. by issuance of order under certificate of posting is one, which is not a recognized mode of service and the said mode of service which has been deprecated by this High Court itself. So far as the period of limitation in the Assessment order for the year 2003-04 is concerned referring t