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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
P. Sam Koshy, Suddala Chalapathi Rao, JJ
THE STATE OF A.P. – Appellant
Versus
M/S. MAYURI FILM DISTRIBUTORS – Respondent
TREVC. No. 26 of 2011
Important Points
Subject
Tax Law - Sales Tax
Act Referred
Headnote
For the Appellants/Petitioners: Swaroop Oorila
For the Respondents: Tarun Chadha, Karthik Ramana Puttamreddy
| Table of Content |
|---|
| 1. procedural history of the tax dispute regarding audio cassettes and the stat's ruling on g.o.ms.no.252. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. competing arguments on whether statutory entry amendments automatically nullify existing government orders. (Para 8 , 9 , 10) |
| 3. statutory notifications issued under section 9(1) operate independently and remain valid until expressly rescinded. (Para 11 , 12 , 13 , 14) |
| 4. binding nature of electronics commission classifications and the continuing validity of non-rescinded notifications. (Para 15 , 16 , 17 , 18 , 19) |
| 5. dismissal of the revision case in favor of the assessee. (Para 20 , 21) |
ORDER:
(Per the Hon’ble Sri Justice Suddala Chalapathi Rao)
Heard Sri Swaroop Oorila, learned Special Government Pleader for State Tax appearing for the petitioner/Revenue and Sri Tarun Chadha, learned counsel representing Sri Karthik Ramana Puttamreddy, learned counsel for respondent/assessee. Perused the record.
2. This Tax Revision Case is filed assailing the order in TA.No.143 of 2005, dt.09.02.2010, on the file of the learned Sales Tax Appellate Tribunal, Andhra Pradesh at Hyderabad (for short ‘the STAT’).
3. The brief facts of the case are that the respondent/assessee namely M/s. Mayuri Film Distributors, is a distributor of audio cassettes and is a registered dealer on the rolls of the Commercial Tax officer, Begumpet, Hyderabad. For the assessment year 2000-01, the Commercial Tax Officer (for short ‘the CTO’), initially issued a show-cause notice proposing to levy tax on sales of audio cassettes @ 12% under Section 5AA treating the respondent/ assessee as trademark holder of ‘Mayuri’ and the respondent filed its objections stating that as the audio cassettes are electronic goods, are liable to tax @ 4%, and the CTO observing that the audio Cassettes fall under other electronic goods under entry 38-D of the First Schedule to the APGST Act, confirmed the levy @ 8%.
4. Aggrieved by the said order, the respondent/assessee filed appeal before the Appellate Deputy Commissioner(CT), Punjagutta Division, which by order, dt.30.04.2004, was partly remanded and partly dismissed. The Appellate Deputy Commissioner held that the CTO rightly levied tax under Section 5AA as deemed first seller of the audio cassettes and the respondent’s contention that the word ‘Mayuri’ mentioned on the cassette cover is to be registered under the Trademarks Act, 1999 , does not change the character of transaction and the appellate authority held that the dealer uses or holds the trademark will not come in the way to levy tax under Section 5AA of the Act and further held that up to 31.12.1999 as per G.O.Ms.No.252, dt.19.05.1995, the audio cassettes are exigible to tax @ 4% and not @ 8% as levied by the CTO and from 01.01.2000, as the audio cassettes fall under Entry 10 of the First Schedule of the APGST Act they are exigible to tax @ 12%..
5. Challenging the said order of the Appellate Deputy Commissioner, the respondent/assessee preferred appeal before the learned STAT.
6. The learned STAT, after examining the record and relying on the decisions of the Hon’ble Supreme Court in State of Andhra Pradesh v. Concap Capacitors & Others, 10 VST 204 and State of Andhra Pradesh v. Dunlop India Limited, 3 APSTJ 84 allowed the appeal holding that the G.O.Ms.No.252 was not rescinded by G.O.No.910, dt.31.12.1999 and G.O.Ms.No.252 issued under Section 9(1) of the Act is operative till it is rescinded irrespective of the changes in the entries to the Act and thus remanded to determine rate of tax as per G.O.Ms.No.252, dt.19.05.1995 for extending the benefit of concessional rate of tax @ 3.5%.
7. Assailing the said order of the learned STAT, the petitioner/Revenue has filed the present Tax Revision Case on the following substantial question of law:
1. Whether the Tribunal is correct in holding that the G.O.Ms.No.252, dt.19.05.1995 is in force even after subsequent amendment to the
