WP/21860/2007 of M/s. ACS Technologies, Vs Government of Andhra Pradesh, on 26 December 2007

HONOURABLE MRS. JUSTICE T.MEENA KUMARI&

HONOURABLE MS JUSTICE G. ROHINI

W.P.M.P.No:33415 of 2007

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WRIT PETITION No:21860 OF 2007

Dated: 26[th] December, 2007

Between:M/s. ACS Technologies,rep., by its ProprietorJaygopal, Kutkatpally,Hyderabad.

..Petitioner

And1. Government of A.P., Commercial Taxes Department, Hyderabad and others.

..Respondents.

HONOURABLE MRS. JUSTICE T.MEENA KUMARI&HONOURABLE MS JUSTICE G. ROHINI

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WRIT PETITION No:21860 OF 2007

ORDER: (Per Hon’ble Smt. Justice T. Meena Kumari)

The present writ petition is filed by the petitioner seeking adirection to respondents 2 and 3 to set aside the final assessmentorder dated 23.2.2007 for the year 2003-2004 by declaring theaction of the respondents as not maintainable and unenforceable.

It is the case of the petitioner that he is doing business inexecution of works contract, which falls under declared goods andpermission was granted to him vide Form L-1 to pay the tax at therates specified under Section 5G of the General Sales Tax Act.Under Section 5F of General Sales Tax Act, every dealer involvedin the execution of works contract has to pay the tax at the rate of4% on every rupee of his turnover pertaining to declared goods.But the 3[rd] respondent without considering Form L-1 and withoutgiving any opportunity issued final assessment order dated23.2.2007 directing him to pay the sales tax at the rate of 8% onthe net turn over. In spite of his representations, the tax has notbeen reassessed. Having aggrieved by the same, the present writpetition is filed.

Heard the learned Counsel for the petitioner as well as thelearned Government Pleader for Commercial Tax. Perused thematerial available on record.

It is the contention of the learned Counsel for the petitionerthat the respondents admitted in their counter that they did notenter the L1 certificate issued to the petitioner in the registermaintained by the Department and for that omission by thedepartment, the petitioner cannot be penalized and apart from that,no prior notice was given to him before passing the assessmentorder and therefore, the assessment order impugned is liable to beset aside.

On the other hand, the learned Government Pleadercontended that even though a show cause notice has been issuedon 6.7.2006 proposing to assess the tax for the year 2003-2004and the petitioner was asked to file his objections, but there wasno response from the petitioner and hence, the final assessmenthas been issued. Therefore, the assessment impugned does notwarrant any interference by this Court.

In view of the peculiar facts and circumstances of the caseand in view of the fact that principles of natural justice requiresthat an opportunity should be afforded to the party before issuingassessment order in a case of this nature, without expressing anyopinion on the merits of the case, We are of the opinion that theassessment order impugned shall be treated as a notice, forwhich, the petitioner shall file his objections with appropriatematerial within a period of four weeks from the date of receipt of a copy of the order and on such objections, the respondents shalldispose of the same within a period of four weeks thereafter inaccordance with law. Till then, there shall be stay of furtherproceedings pursuant to the assessment order impugned.

At this stage of the proceedings, it is pertinent to note thatthe petitioner has moved the above application seeking a directionto the respondents to issue the way bills and C forms to thepetitioner so as to continue his business in its normal course, forwhich, the learned G.P. has fairly conceded basing on the writteninstructions that the respondents are inclined to issue the waysbills as well as the C forms. Accordingly, the direction as soughtfor in W.P.M.P.33415 of 2007 is granted.

Subject to the above direction, the writ petition is disposedof. No order as to costs.

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Justice T. Meena Kumari

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Conclusion

Justice G. Rohini

Date:26[th] DECEMBER, 2007Note:CC in two days.(BO)Nn.

HONOURABLE MRS. JUSTICE T.MEENA KUMARI&HONOURABLE MS JUSTICE G. ROHINI

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WRIT PETITION No:21860 OF 2007

(Order delivered by the Hon’ble Smt. Justice T. Meena Kumari)

26/12/2007