THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
Writ Petition No.8956 of 2022
ORDER:- (per the Hon'ble Sri Justice C. Praveen Kumar)
Assailing the order, demanding payment of tax for the
tax period from April, 2017 to June, 2017 on direct export
sale of granite, the present writ petition came to be filed.
2. The averments in the affidavit filed, in support of the
writ petition, show that the petitioner herein is a registered
dealer on the rolls of the 1st respondent under Central Sales
Tax Act, 1956 [for short, "CST Act"], engaged in business of Export of Sales of Raw Granite Blocks and Polished Granite Slabs. The petitioner is said to have filed monthly returns in Form CST-VI for the tax period of April, 2017 to June, 2017 declaring the turnover-Export sales of Granite @ Rs.30,78,007/- along with the documents, claiming exemption under Section 5(1) of the CST, Act. The first respondent herein is said to have passed a Final Assessment Order dated 02.09.2021, without considering the documents filed along with the returns, as required under Rule 14-A (1)(b) of the Central Sales Tax (AP Rules), 1957. The petitioner herein claims that he has no knowledge of the show cause notice dated 23.01.2021 and was under an impression that the documents filed along with the returns 2 CPK, J & TRR,J W.P.No.8956 of 2022 were sufficient to claim exemption under Section 5(1) of the CST Act and that filing of declarations in Form 'C' and 'H' will be unauthorized. The said fact was also brought to the notice of the 1st respondent through a letter dated 23.02.2022, for reconsideration of the impugned proceedings dated 02.09.2021 and the same is pending consideration. Challenging the action of the authorities in imposing tax, without considering the exemption claimed, is subject matter of challenge in the present writ petition.
3. Sri K. Adi Siva Vara Prasad, learned counsel appearing for the petitioner would submit that sale or purchase of goods shall be deemed to have taken place in the course of exports of goods out of the territory of India only if (1) the sale or purchase results in such exports; or (2) is effected by the transfer of documents of title after the goods have crossed the customs frontier of India. In other words, he would submit that Article 286(b) of the Constitution of India prohibits imposition of sales tax on import. He also relies upon judgments in support of his plea.
4. Learned counsel for the petitioner further submits that an appeal under Section 31 of the A.P. VAT Act lies, but no appeal has been preferred since the transaction is squarely covered by exemption under Section 5(1) of the CST, Act. In other words, he pleads that levy of tax is without jurisdiction. 3
CPK, J & TRR,J W.P.No.8956 of 2022
5. Learned Government Pleader for Commercial Taxes, opposed the same contending that when a statutory appeal is provided and when the issue involved herein can be raised in that appeal as well, jurisdiction of this Court under Article 226 of Constitution of India cannot be invoked. He further submits that the parties are approaching this Court directly only to avoid deposit of 12.5% on the disputed tax for entertaining the appeal. He also relies upon a judgment in Assistant Commissioner (CT) LTU, Kakinada and others vs. M/s.Glaxo Smith Kline Consumer Health Care Limited1 in support of his plea.
6. The point that arises for consideration is, whether this Court can entertain a writ petition under Section 226 of the Constitution of India when the plea of the petitioner is that the authorities have acted beyond the jurisdiction in refusing to grant exemption of claim by the petitioner?
7. In Assistant Commissioner of State Tax and Others vs. Commercial Steel Limited2, the Hon'ble Supreme Court observed as under:-
"11. The respondent had a statutory remedy under section
107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ 1 AIR 2020 (SC) 2819 2 2021 SCC Online SC 884 4 CPK, J & TRR,J W.P.No.8956 of 2022 petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is:
(i) a breach of fundamental rights;
(ii) a violation of the principles of natural justice;
(iii) an excess of jurisdiction; or
(iv) a challenge to the vires of the statute or delegated
legislation."
8. In order to appreciate the rival arguments advanced, it is to be noted that the petitioner claims to be doing business in export-sales of raw granite blocks, polished granite slabs and it's allied products. The order impugned namely the Assessment Order dated 02.09.2021 shows that the petitioner obtained registration under A.P. VAT and CST Acts in the name and style of M/s.Sri Veera Brahmendra Exports and filed Form CST VI returns, disclosing the turnover of their business under CST for the year 2017. It also shows that the total turnover of export sales of granites was around Rs.30,78,007/-. The dealer is said to have claimed exemptions from tax on the above turnover, which, according to the Assessment Authority was not covered by any documentary evidence. An opportunity was given to the dealer to produce the documents, but the dealer failed to do so. Learned Government Pleader would contend that the notice dated 23.01.2020, issued by the Commercial Tax Officer would show that the authorities have issued a notice to the petitioner informing him the proposal of levying tax on the turnover for the years 2017-18. A final opportunity was accorded to the dealer to file relevant statutory forms within 5 CPK, J & TRR,J W.P.No.8956 of 2022 15 days from the date of receipt of the notice. It appears that no documents are filed in support of the claim made.
9. In view of the above, the authorities treated it as direct sales and accordingly passed an Assessment Order, basing on the records available on the turnover. The claim of the petitioner in Para 4 of the affidavit is that though documents were filed along with the returns, as required under Rule 14- A (1)(b) of the Central Sales Tax (AP Rules) 1957, the authority did not refer the same. The same is disputed by learned Government Pleader stating that, if really, the petitioner has filed all the documents evidencing export sales of granite, which warrants exemption under Section 5(1) of CST Act, he could have agitated the same by filing an appeal before the authority, in which event, the issue could be solved by summoning the record.
10. Infact, the averments in the affidavit disclose that the petitioner herein submitted a representation through a letter dated 22.02.2022 for reconsideration of the impugned proceedings and the same is pending consideration. Since the order is an appealable one, it may not be proper for this Court to give a direction to the authorities to consider the representation made by the petitioner. It may be true that the petitioner herein has filed some papers, but there is no 6 CPK, J & TRR,J W.P.No.8956 of 2022 proof that these papers were filed along with the assessment before the authorities.
11. Hence, giving liberty to the petitioner to prefer an appeal as contemplated under the Act, the present writ petition is disposed of. It is needless to mention that the period of pendency of the present writ petition and the judgment of Hon'ble Supreme Court Suo Motu Writ Petition (C) No.03 of 2020 shall be taken into consideration while calculating the limitation. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR _________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 05.08.2022 MS 7 CPK, J & TRR,J W.P.No.8956 of 2022 THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO Writ Petition No.8956 of 2022 (per the Hon'ble Sri Justice C. Praveen Kumar) Date: 05.08.2022 MS