Telangana High Court

WP/39125/2014 of M/s. Nandilal AND Co., Vs State of Telangana on 30 December 2014

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SRI JUSTICE RAMESH RANGANATHAN AND THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION No.39125 of 2014 ORDER: (Per RR,J) The proceedings under challenge in this writ petition is the assessment order passed by the second respondent dated 29.11.2014 classifying the milk

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THE HON’BLE SRI JUSTICE RAMESH RANGANATHANAND

THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION No.39125 of 2014

ORDER: (Per RR,J)

The proceedings under challenge in this writ petition is theassessment order passed by the second respondent dated29.11.2014 classifying the milk cans as storage containers, andthereby excluding them from the purview of Entry 90 of ScheduleIV to the Andhra Pradesh Value Added Tax, 2005 (for short ‘theAct’).

Sri K.S.Murthy, learned counsel for the petitioner, wouldcontend, not without justification, that the milk cans, used by thepetitioner to transport milk, cannot, by any stretch of imagination,be classified as storage tanks, which alone is excluded from theambit of Entry 90 of Schedule IV to the Act; and as these plasticcans contain milk, they would fall under the ambit of “packingmaterial” in Entry 90 of Schedule IV to the Act.

Entry 90 of Schedule IV to the Act reads thus:

“All kinds of packing material including Hessiancloth and jute twine but excluding storage tanks made ofany materials.”

While all kinds of packing material fall within the ambit ofEntry 90 of Schedule IV to the Act, it is only storage tanks whichare excluded therefrom. The milk cans, which have beensubjected to tax by the impugned assessment order, are notstorage tanks, which are excluded from the ambit of Entry 90 ofSchedule IV to the Act. As the assessing authority has erred intreating these plastic cans as storage tanks, we were initially Sri J.Anil Kumar, learned Special Standing Counsel forCommercial Tax (TG), would fairly state that, while the assessingauthority may not have been justified in treating these plastic cansas storage tanks, the question which would still necessitateexamination is whether these plastic cans can be treated aspacking material, which alone fall under the ambit of Entry 90 ofSchedule IV to the Act. Learned Standing Counsel would submitthat, instead of keeping the writ petition pending on the file of thisCourt, it would suffice if the assessing authority is permitted topass an assessment order afresh.

In view of the submission made across the Bar by Sri J.AnilKumar, learned Special Standing Counsel for Commercial Tax(TG), and as the assessing authority has erred in treating theplastic cans as storage tanks, the impugned assessment orderdated 29.11.2014 is set aside. It is made clear that this order shallnot preclude the assessing authority from examining the matterafresh, and after giving the petitioner an opportunity of beingheard, determine whether or not the plastic cans used by thepetitioner are packing material falling under the ambit of Entry 90of Schedule IV to the Act.

The Writ Petition stands disposed of accordingly. Thereshall be no order as to costs. The miscellaneous petitions,pending if any, shall stand closed.

_________________________

RAMESH RANGANATHAN,J

_____________________________

30[th] December, 2014

GHN

M.SATYANARAYANA MURTHY,J

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