THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE SUDDALA CHALAPATHI RAO W.P. No.6410 OF 2007

ORDER

: (Per Hon’ble Sri Justice P.Sam Koshy)

Heard Mr. M.V.J.K. Kumar, learned counsel for the petitioner and Mr. T. Chaitanya Kiran, learned Assistant Government Pleader representing Mr. Swaroop Oorilla, learned Special Government Pleader for the State Tax for the respondent.

Perused the record.

2. The instant is a writ petition which has been filed by the assessee initially challenging the show cause notice dated 08.06.2004 issued by the respondent for the alleged default in payment of tax under the Andhra Pradesh Goods and Services Tax, 1957. Pending the writ petition, the department had proceeded and had also passed the assessment order also vide assessment order dated 28.03.2007. Meanwhile, the writ petition was amended. The assessment order has also now been challenged in the present writ petition.

3. Primarily, there have been two grounds raised by the learned counsel for the petitioner in assailing the show cause notice as also the subsequent assessment order. First, we deal that the petitioner has not been permitted to cross-examine the material witnesses on the basis of which the show causes notices were issued and the final assessment order was passed. The second ground being that both the show cause notice as also the assessment order are bereft of material informations based upon which the show cause notice at the first instance was issued and also the final assessment order which was subsequently passed. The contention of the petitioner is that neither the show cause notice nor the final assessment order gives the details of the materials that were collected by the respondent authorities on the basis of which the show cause notice was initially issued and which later on culminated by the passing of the final assessment order.

4. The learned counsel for the petitioner went on to say that the assessment order as also the show cause notice does not disclose any information or refer to material documents over which the authorities could lay hand on, in the course of the so called inspection that was carried out on the premises of the petitioner’s establishment i.e., 25.05.2004. He further contended that without making available any such details, on a vague averment of the petitioner having imported huge quantity of mobile sets from overseas countries and have not paid the tax under the APGST law then prevailing, would not be sustainable. He further contended that these information’s are also not referred to or dealt with by the Assessing officer in the course of passing of the final assessment order dated 28.03.2007 and without these informations available, the petitioner could not had been expected to have effectively defended his case. He further submits that in the absence of making available these detailed information on the basis of which the proceedings are drawn against the petitioner, the assessing authority cannot be said to have applied his mind in the course of passing of the final assessment order. He further contends that the assessment order has been passed only on the basis of assumptions and presumptions without there being any complete materials either available with the department or if available, not made available to the assessee and also not been referred to either in the show cause notice or in the assessment order. On both these grounds, the learned counsel for the petitioner prayed for the quashment of the show cause notice and the assessment order.

5. Learned counsel for the petitioner relied upon the judgments of the Hon’ble Supreme Court in the case of STATE OF KERALA vs. K.T.SHADULI YUSUFF AND ORS, AIR 1977 SC 1627, K.V.KRISHNA MURTHY J.V.PULLA RAO AND CO. vs. COMMISSIONER OF COMMERCIAL TAXES, (2006) 146 STC 13(AP) and KWALITY FURNITURES AND DECORATORS vs.

COMMISSIONER OF SALES TAX, (1986) 62 STC 337 (All)

6. Per contra, Mr. T. Chaitanya Kiran, learned Assistant Government Pleader un