WP/884/2008 of M/S.DIGITAL THINK INDIA PRIVATE LIMITED, WEST BENGAL. Vs THE C.T.O., SOMAJIGUDA CIRCLE, HYDERABAD on 5 December 2025

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF DECEMBER TWO THOUSAND AND TWENTY FIVE PRESENT [ 346e ] THE HONOURABLE SRI JUSTICE P,SAM KOSHY AND THE HONOURABLE SRI JUSTICE SUDDALA CHALAPATHI RAO WRIT PETITION NO: 884 OF 2008 Between: M/s-. Digitar rhink rndia private Limrted, 1st Froor, second Buirdino. prot No.Xt-16, Btock Ep and Gp gectoiV,-slrt Lrn""6iiy, iik";i:r, \i;"ri ild;i rep., by its Director Mr. Sunil Girdhar

- --''- - '., AND ...PET|TioNER The Commercial Tax Officer, Somajiguda Circle, Hyderabad. ...RESPONDENT Petition under Articre 226 of the constitution of rndia praying that in the circumstances stated in the affidavit fired therewith, the High court may be pleased to issue a writ of certiorari or any other appropriate writ or order or direction quashing the order of the respondent dated 2g-3-2007 (served on 27-12- 2007) for the year 2oo3-04 under the APGST Act as passed beyond rimitation and served contrary to Rure 5g of the APGST Rures or in arternative decrare the assessment order as passed in vioration of principres of naturar justice and consequentry direct the respondent to pass appropriate orders after considering the objections of the petitioner and affording a personal hearing. l.A. NO:1 oF 2008(wP MP. NO: 1054 0F 2008) Petition under section 151 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be preased to grant stay of all further proceedings pursuant to the impugned order dated 2}-3-2ool passed by the respondent for the assessment yeat zoo3-o4 under the APGST Act (served on 27-12-2007 ) pending disposal of the writ petili ,n as otherwise the petitioner will be put to severe loss and hardship. Counsel for the Petitioner: SRI KARTHIK RAMANA PUTTAI1 REDDY Counsel for the Respondent: SRI T.CHAITANYA KIRAN, A(: P FOR SRI SWAROOP OORILLA, SPL. C,I , FOR ST The Court made the following: ORDER

IN THE HIGH COURT FOR TI{E STATE OF TELANGANA AT HYDERABAD HONOURABLE SRIIUSTICE P.SAM KOSHY AND I{ON'BLE SI{I IUSTICE SUDDALA CHALAPA HI ITAO WI(IT PETITIONN0.884 0F 2008 DATE:05.12.2025 Between: \l/s Drgital 'lIiink tnclia Prir.tic I_imiterl, I'r floor, Scconcl Building, plot No.XI 16, Illock EI, &GP, Scctor-V, Salt I.akc Cirr., K,,lk,tta. \\'est BpnHal. rcp.br its Dirr.,.tr.,r, \lr. Sunil Girdhar Pe[itioner And i'hc' Commercial Tax Officer, Soma jiguda Circle, I{ydcrabad Respondent ORDITR: (per Hon'ble Sri lustice Suddala Chalapathi Rao) Hearcl Mr.Karthik Ramana I)uttamrccldl,, learned counsel for the petitioner and Mr.T.CI.raitanya Kiran, iearned Assistant Government pleadc.r reprc.senting l\,lr.Swaroop Oorilla, learned Special Go'ernmc^t Pleacle.r for State ,fax, for the respondent.

2. Ihc irrstarrt Writ Petition has bee.n fiteci assailing tl.re ordcr passed Assessing Officer for the assessment year 2003_04, '('

clated 28.03.2007. The r.r,'rit petition was admittecl f r hearing as earlv as on 23.(l'1.2008.rrrcl interirn stav vvas also ',rantecl on a conciltion of tlre petitioner depositing 50% of thL' lisputed tax within a pcriotl of four w'eeks ) 'The challc'nge to the assessment order is rr i -le prir-narilv on the grounil that the order is one which b.rn ed L-',r' rrrlc c-lateci orilcr p,asscd by tl-re Assessinil ')fficer' Thc petitioner establishment is one which is tn' 'lvecl in the busincss of softr,varc exPorts and develops 'rftu'arc and lin-ritation a^cl that the orcler is also one which, iii) )'iretlll' is an thercafter crport tl-rcm through the Software Tec - roLogies I'ark of India. It is contendcd that the petitior-rt I falls under exemption categorv Section 5 (1) of the Central 1 :rles Tax Act' 1956, as thc naturc of business carried out by th: petitioner i'e business of software exPort. In due cours': petitioner's Lrusiness r,r'as taken over by auothel' namely: Convergys lndia Services Private Limit from December, 2005 onwards. The responde issueci a slrovr'-cause rrotice directing the Petiti(r of time, the :s tablishment ,d u.ith effcct rt au thorities cr '!o Provide documents to substantiate the income received from software clcvclopment from export mode to foreign counbries so as to avail exernption. l he shovr,-causc notice is said to have beer-t issued on 01.02.2007. As per the contents o[ the counter filecj bv the Department, the show,-cause notice rvats also effectively se'rvcd upon the petitioner. As the notice sent came back r,r.ith .ln cndorselnen t "addressee lef t". .l'he show_cause notice \,\,as aiso servccl bv rvav of affixing on thc petitioner,s last knorr.rr ;rddress ol residencc, in terms of Ilu te 58 of Anclhra praclesh Ceneral Sales 'l'ax Rules, 1957 (for short ,,the ApGST Rulcs). l)ursuarrt thcreto, the assessment order rvas passecl by thc i\ssessing Officer raising a demar.rd of Rs.1,37,50, 160/-. |he impugned assessment order is dated 28.03.2007. The impugneci ordcr rvas iinally served upon ihe petitioner on 20.12.2007. 'lhcre rvas a large gap in between passing of the order ancl service of order on the petitioner. This according to the pc'tr tioner, Ttrinn .[ncie, reflects the orcler to be an arzfe dated order. It was also the contention of the petitioner that apart from the said fact, the order being antedatecl, the respondent a'

has also not adhered to the lecognized mod: of service of notice order under Rule 58 of the APGST Rules. 'vhich itself is also suf [it'icrrt to dravv an aclversc infercn - ag;rinsL thc resl-r6nds.1,.rs the irnpugned orcler being nlfc ci.: ed order

4. It is corrtcrrdccl bv the learned counsel lcr the petitioner post or b1' affiring the samc or-r the addressee [,, fore a r.rr itness Section 1a (l) of the Andhra Pradesh Cenerai lales Tax Act, ancl rr-r tl're irrstant case, the Department allegecl t have scrt the impr,rgnccl olclcr unclcr certilic;rtc of postirrg, ,.'hicl-r is not a 'limrtation rn the r\ssessmerlt order for the yea- 2003-01 urrcler 'recognized mode of service and the said mode o serrrice rvhich has beerr dcprecatecl bv this High Court itself fhe period of that under Rule 58, the mocle of service shoulcl lr' lrv registerecl 7957 (for short "the APGSI Act") would c: nmence from 01.04.2004 arrd ends b1' 31.03.2007 and thougL, :he irnprugnsd assessment order is dated 28.03.2007 and alleg,: , to have been servcd b1, posting in certificate of posting an: which in fact was actuallv scrved on 20.12.2007 and the lealr ':d counsel for the petitioncr contends that sarne is ante dattt I orcler and is

(" barred by limitation. According to the petitioner, just to show ihat thc impugnc.d order of assesstnent is onc which has been passed rvithin the lirnitatior-r period, the Assessing Officer has put datc as 28.03.2003 to be the clate of rvhich the assessment orcler rvas passc.cl. How,ever, thcre is no substantial cogent material available w.ith the Department io show tl.rat the order \\rers onc w'l'rich r,vas passecl on 28.03.2007.

5. Per conbra, though counter-af f idavit is not filecl in the instant case, learned Special Government pleader for the Departrncnt contcnds that there n as a total non-coo peratiol.l from the petitioner's side, inasmuch as, evcn when the show cause notice was issued on 01,.02.2007, the Deparhnent found it clifficulL in serving the samc. The registered noticc sent camc back with an enclorsement "acldressee left". 1'he Department personally made an effort of serving ihe notice through process sen,er ol the Departmenl, but, the process server found the petitioner not being available at the given business address anci lastly, the show-cause notice was served by way of affixturc at the petitioner's last known address of residence. All of ll.hich, it is statecl, \\/ouIc1 show that the requirement u - ler Rule 58 of the APGS'I' Rules was strictly adhered to and in ;pite of these, the petitionr:r' r,hoosc rrot to delend hir-rrsell arrtt tot to appcar before the ar-rtlrol'itir:s ancl lras ni:ithcr availed ti I oPfrortu llltv to put forth his defence nor gave lris explr ration to the contents of the shorv-cause notice ancl in tl- t process, the Assessrng C)if iccr n'as left n,ith no othcr opLiorr, I rt, to pass the order dated 28.03.2007, which is well within lre periocl of limitatior-r and als it rt,as postcd under ccrtificato f posting ar-rd served upor-r tl-re petitioner orr 20.12,2007 and I r rs, contendecl that the irnprugllsd asscssment ordel' is not ; rtedated and inasmuch the ordc-r is passecl rvithin lirnitation and a perusal of the record, evidentlv there is no :,iispute so far as the period of limitatron for the assessrrcnt tc ,e made for a particular assessment year is tlrree years frorr he period of assessment i.e for the assessment year 2003-04, ,he period of limitation n,oulcl be up to 31.03.2007. l-he sho., -cause notice

6. Havir-rg hetrrd the contentions put-forth : r either sides issued by the Departmen t .tppears to be one which rvas sent on 01.02.2007.

7. .\s .t matter of recorrl as thc service of orclers was m;rtle through ce.rtificate of posting ancl actualiy servecl to the assessee on 20.12,2007 Letrvirrg aside the discrepancies, so far as the date of orclcr arrd dtspatch o[ order for a moment, wc procced to clecrcle r.r,helher thc mode adoptcd by the Department for ser-rding thc order of assessment under ccrlificate of positrng bc a rccognizer] modc of servrce or not. It n,ould be relevant to take noie of Rule 5g_A of the ApGS.l. Rules, which for ready reference reproduced hereunder: 'Section 58: Ihe su ntntol-ts, ortle r- clr thesc rules mav be namcly. servit't on a dealer o[ any notice, proc('edings unrler the Act or uncler L'[l'r tt.cl irr .rnv of lhc following ways, a) by giving or terrdering it to such dealer or his manager or agerlt; or h) iI such c]ealcr or his rnanager.or agent is not found by leaving rt at his last knc,lr,n plice of business or residcnce or b1, giving or tcndering it to aclult member. of his farnily; or c) if the address of such dealer is known to the assessing authoritl,, by serrcling it to him by rcl3istcrcd posU or (ancl if it is rctumed unserved, it shall be put on notice board of the office of the asscssir.rg authoritl or. the rtrtice boartl irr the office of I

the local Chamber of Commerce crr i\ssoi-iation, and it shall be deemed tlu t notic:t' or sLrnrnlons or' pr ocet,rlirrgs art: s(,1 ! Llcalcr ,rrrJ r, ti,'rr .,lrall 1,,' l.rlerr irr 1,r11'', , accorc{ingli'.) Traders lhe said r-1 on the , thcr coI d) i[ anv or all of tlrr. mor]cs ;r(ores.rirl is nol t, r,.Licablc, bv affixing it irr some conspicuous placc, his l;rst knorvrr placo of busincss or rcsitlcnce."

8. ,A plain re.rcling of the aforesaid provision i ,' itself w ould onc ivhich is prescribecl in the statute as the \ .,.i. r[. re,coclrized reflect that the service of notice by certificate,) rosting is not mode of servicc. lt r.r,oulci also be rclt r.an[ a t ]S 1n service of noticc by lr,ay of "ccrtificate of f.cs ing" helcl as ju r-rcture to refcr to the dccision of the Division Bench of thi:, ligh Court in Sri Lakshmi Venkateswara Industries r,. C.r r rmercial Tax Officer, Vanasthalipuram Circle, Hyderabadl vvherein, para No.B of the juclgment, this Court has I l erred to the under: "8.......Judicial notjcc can hc takcn of thr, authoritics rcsort Lo [l.re 'certificate of postillil service of notices onlv to avoicl producing proi.f r lhat this rncthod of servicc, is capablc of abus,, dispute. "Certificatc of posting" is not one of th,:

modes of service of notices under rule 6i1 of [li, r.t lhat ,rutc for servicc. rs rlot in cscli bed Andhra ' (2011)46 VST 349:2011 SCC Ontine AP 1081

9. From the af orcsaici judicial pronouncement itself it Pratft:sh Valuc Adcled Tax I(ules. The bona fides of the first responclent, in initially contending that the show-cause notice n,as sent bv RPAD and ren taking a "U" hrrn to submit, in the addtional counter-affidavit, drat the show- causc notice \\as sent bl ccruficate of posfrng, is suspect. \\'r- arc, prima facic, of the vien' that [he. scvcral c.rrtradicho,s. in thL' co Ln krr'a rfidavi t r.,is-a-r,,is the addrtionai countcr-aflidar it filcd bi the first responclcnt, rellect hr:r cnrlt avour to misleacl this court, and to avoid being prcceedetl againsl for perlurv. \,Ve had tl-rerefore, by orcler clatecl January 25,2071, directecl appearance of thc first rcspondcnt, and for pro.luction of Lhc filc rclahng to the cancellntiorr ordtr. Ilon'evel Lhc rclcvant rccords, inclucling the clcsp.rtch li,gisler, w(,r'(, nor producecl." \\rould app(rre'rrtlv eviclent that thc scrvicc of notice Lry referrir,g to certificate of posting bl thc Dcpartment is not one, which is acceptable nor it has been considered as recognized rather the High Court has dcprccated such .r practice being adopted. ln the teeth oi saicl lirrcling b1' tl-re Division Bench of this High Court and in the absence of materials to show that efforts have been made by the Department irr serving the impugned order dated 28.03.2007 primarily' rvithin reasonable period of time, strong inference has to bc drawn against the Department ir-r viewing the rmpugned orcler to be the one which is an ante dated order, fhe Ilorr'ble Supremc Court in the case of State of I

Andhra Pradesh v. M.Ramakishtaiah & Co.2 cir rling with the aspect of inordinate delav on the part of thc Ircpartmcnt in servir-tg the order upon thc aisscssee has ltelcl as r dr.r: " We are of the opir-rion that tlie thcorr. c,,,olved b, (ourt nr..rr r)ot he re,lll). calln.i lor. in llrc , i1.1 111; . lhp c,)\', .\\r,a-rc oI lhe Upirri.,rr tlr.rl I I I r ., , r 1 I I r , . r , Llr\mr\so(l ,,rr tllc grourtrl urfr,J lr\ [lro,rss|ssoe ,r I \tdterl db,,\o, lhe order,,l tlrr I).-l)ut\ ( ()nlnti\si. kr lrave bcct.r n-Latle on Januarr, 6, 1973, but it r. i upon the assessee on Novembcr, 27,7973, i.e., pr,.i i months Iater. Therc is no explanation from il, Commissioner whv it n,as so rit,lavecl. [I ther.t. l; r proper ,-\ irl.l n.l tiorr. it u.oulrl h,,r ,, hn,,rr a,litf,,r, But, in the ahssn,." of anv crplanatiorr rr.hatsocr. t,r . prcsune that the order r.r,as not macic on lit, purports to have been made. It could have [.,ecn r.r the s1.priy1 of the prcscribed l,,ur yp,,r. 1-r*r; u1 appeai is accordingly dismissccl. No cosLs.,l he FIigh arnces ol as [o be st,lf. ..\s r is sa rd ; scrr erl 'h [f)1: i)e.pu h Ircgt.t a nrattcl. ! t' lll USt i{atc it .tt, al:ter. rr. c ivil l\\, infercncc ;tancc made .e upon the thc cfforts j envisaged Ls follorvcd. 'r, \vhen ii

10. Another reason what forccs thrs llench to r r against the Department is the effort ai the first rr by the Department in serving thc shor,r,_cause rrt I petitioner/ assesseL. gives a clear ir-rclicatron of .r made by them, and proceclure, all of which was , under Rule 58 of the APGST Rules which again \\ reproduced in the foremost paragraphs. I Iowcu '1rss+; s: src 406r1994 scc onLine sc 3

the proceclurr' th.rt is prr'se ribtrcl untlt'r ItLrlt' 5fi. -I-his action .rs comes to serving of the asscssment order upon the petitioner is corlcerned, r-rone o[ Lhc nrode r.r,hich thc'y harl atdopted in the course of scrv ing the slion -causc t-tittice \'vas .ldopted, rather they took altogether;r clil'ferent modc which is totally alien to notice admittcdlv has bc'err rn.rdt' on 20,12.2007 n'hich is saic.l to be by certificate o[ prosting, n,hich is not thc Proper mode of datc.cl order for thc sinrPlp rc'ason that thc .rctual scrvice of service as crrvrsagcrl in [ir-rle 5ti ot ,\l'CS I [ir.r lc's and thus, in has been suggestcd earlicr cornpels the []c'nch to clraw an advcrse inferencc' oi the' orcler clatt'c1 28.03.2007 being arrtc our considered oprnion, thc irnpugnerl ordcr is "tnte clated and the same is barred bv limitation.

11. Havirrg held t['re iurpugr.rerl order to be antcclated and barred by limitation, learned counsel f or the State had also taken a preliminarv objectiorr of petitioner though has the remedy of appeal against the impugned orcler before the appellate authority has filed the writ petition under Article 226 of the Constitution oi Inc{itr. As has becn cliscussccl in the L2 irritial paragraphs of this order, thc asscssrnt,r r which is dated 28.03.2007 and thc orc{er lvas ,r(,. petitioncr admitteclly in Decembcr, 2007. I he r.r. . imn.reclratelv iilccl bcforc the I ligh Court ancl I adrnittcd the petition on 23.01.2008 itsclf. As sr no much tirnc lost bv the petitioner in availin€l tlr ancl u hich rv.is ai.ceptcrl by thc I Iig;lt (,oLrr[ a:- rnterim protcctrolt. Now af ter 17 years of r,r,rii pending bc.forc this Court, we arc of the firnr juncture, thc crbjt:ction of thc icarrrcd .,\ssis[ar-i I'leader of lelcgating the petitioner to arzail rer-nedv of appcal would not be proper, k:ga) r ar-rd also the tlon'ble Supreme Court in the. cas, Commissioner (CT) LTII, Kakinaila antl others t.. Kline Consutner Health Care Ltd.,3 has categori, tlre remedy under Article 226 of t|rc Constitution the cases where the point of limitation or juriscliL and thelefore, the said objection stands overrulecl. orclcr is one ,ed upon the petition n,as ' Ilirlh C ourt -h, thclc rt,as rt,rit ren'redy a lso qran tr-cl r:tition being r.icrv at ihis Gor t,rnr rten I hc statu tory rcl justiii.rblc ol-Assi.slrzll Glaxo Sttrith llv held that ;'n,;rilablc in ion is ra ised ' 1zozol rs scc e8t which is otherwisc barrecl bv Iimitation arrd consccluently thc impugned assessmcnt orcler datccl 28.03.2007 is qtrashccl and set as iele 13., . Accordingty, the \,! rrt Petition stands allowed. l hcre shall be no order as to costs Consequentlr', miscellaneous petitiorrs pc'nclrrrg, if any, Sd/.M.OSMAN ALI BAIG SSISTANT REGIST //TRUE COPY// SECTION OFFICER

12. With the aforesaid findings as to the facts arld holtling that the orulcr o[ asscssnrent is btrci in lan'.rntl is orre circumstances of the casL. ancl jurisd ictional precc.dents rlarrated above, u,c. are inclinerl to trllow the writ petition in shall stand closed. That Rule Nisi has been made absolute as above' WitnessTHEHoN'BLETHECHIEFJUSTICEAPARESHKUMARSINGH'onthis./ riioni, THE FTFTH DAY oF DECEMBER Two rHousAND AND TWENTY Flv To 1. The Commercial Tax Officer, SomajigudlCrlgle-,.

z. Oni CC to SRI KARTHIK RAMANA PUTTAMRE

5. On" CC to SRI SWAROOP OORILLA, SPL. GP

4. Two CD CoPies D FO rabad , Advocate [OPUCI ST [OPUC] PSK. PMK U/

HIGH COURT DATED:0511212025

ORDER

WP.No.884 of 2008 <.UK 1l'l rD * C) t N-_Qrr ALLOWING THE WRIT PETITION WITHOUT COSTS @,, 1 I T L )r" '-1i., . \ vz.' f. 'aa\ I 2fl1c ,\

9) !i -A r, s'// ,.f"::'-ll'/ '1.:.7.-' I