Andhra Pradesh High Court - Amravati
M/S Akr Constructions Limited, vs The Commercial Tax Officer, on 22 December, 2021
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
HON'BLE Mr. JUSTICE AHSANUDDIN AMANULLAH
AND
HON'BLE Ms. JUSTICE B.S. BHANUMATHI
WRIT PETITION No.30212 OF 2021
M/s AKR Constructions Limited,
D.No.9-1-105, Near Pedda Bhavi,
Kapadipalem, Nellore,
Andhra Pradesh,
Rep. by its Managing Director
Mr. A. Krishna Reddy
... Petitioner
Versus
1. The Commercial Tax Officer, No. III,
Nellore, Andhra Pradesh.
2. The Commissioner of Commercial Taxes,
State of Andhra Pradesh, Vijayawada.
3. The State of Andhra Pradesh,
Rep. by the Principal Secretary,
Commercial Tax Department,
A. P. Secretariat Buildings,
Velagapudi, Amaravathi,
Andhra Pradesh.
... Respondents
Counsel for the petitioner : Mr. Bhaskar Reddy Vemireddy,
Advocate.
Counsel for the respondents : Mr. Y. N. Vivekananda,
Government Pleader,
Commercial Tax - II
ORAL JUDGMENT
Date : 22.12.2021
(Per Hon'ble Mr. Justice Ahsanuddin Amanullah)
The petitioner is aggrieved by the assessment order, dated
17.11.2021 passed by respondent no.1, by which excess TDS of
Rs.4,27,60,806/- has been forfeited by invoking Section 22(3-A)
read with Rule 18 (3) (b) of the Andhra Pradesh Value Added Tax
Act, 2005 (hereinafter referred to as the 'Act').
2. Learned counsel for the petitioner submitted that the
said assessment order is erroneous and patently illegal. It was
contended that the forfeiture has been made on the ground that
the petitioner had collected the tax while being paid for the works
done by it in a contract with the Government to which it was not
entitled. Learned counsel submitted that the works done by it
were under EPC contract in which there is no estimation of work
and thus, there cannot be any question of it being paid any tax
component, which is the requirement for invoking Section 22 (3-
A) of the Act. Learned counsel submitted that the petitioner, in
fact, is entitled to refund of the TDS amount, which has been
forfeited and on top of it, it has been saddled with extra demand
of Rs.1,36,63,732/-. It was submitted that this Court has
entertained a writ petition and the matter has been admitted for
hearing. Further, learned counsel submitted that the
Commissioner of Commercial Taxes having instructed for further
deduction which was followed by the assessing authority, moving
in appeal before the appellate forum would be a futile exercise as
the Appellate Authority is subordinate to the Commissioner of
Commercial Taxes. Learned counsel submitted that another
illegality committed by the Assessing Authority is with regard to
passing order of forfeiture in the assessment order itself without
resorting to the procedure for such forfeiture. It was submitted
that passing such an order of foreiture in the composite
assessment order itself is impermissible and requires interference
since the show cause notice is with regard to assessment only.
Summing up his arguments, learned counsel submitted that even
in law, such forfeiture can be within three years from the date of
collection, whereas, in the present case, the period is more than
five years from the date of collection, which does not authorize
the authority to pass such an order relating to forfeiture.
3. Learned counsel relied upon the judgment of the Hon'ble
Supreme Court in Filtrco & Anr vs. Commissioner of Sales
Tax, Madhya Pradesh and Another [1986 SCR (1) 239] and
submitted that under similar circumstances, when the High
Court had refused to entertain the writ petition, it was observed
that the High Court should have examined the merits of the case
instead of dismissing the writ petition in limini. For the same
proposition, learned counsel also relied on the judgment in
M/s.Jaiprakash Associates Limited V. Superintending
Engineer [2014 (2) ALD 394].
4. Per contra, learned Government Pleader, Commercial
Tax-II, submitted that from the impugned assessment order dated
17.11.2021 itself, it is clear that each and every component has
been separately dealt with by the Assessing Authority, which
clearly indicates that certain rate of tax was collected and TDS
was also deducted. It was submitted that inasmuch as where
there was excess of TDS, refund has been shown, whereas, in the
case of TDS amount being less, demand has been raised for for
such amount and finally it has been computed that the petitioner
had collected Rs.4,27,60,806/- in excess, which was forfeited and
further an amount of Rs.1,36,63,732/- has been held to be
payable by it. Moreover, it was submitted that consideration of
the matter would require the Court to go into finer factual aspects
in detail, which may not be required as the petitioner has an
alternative remedy of moving before the Appellate Deputy
Commissioner (CT), Tirupathi, within 30 days of the receipt of the
order, which the petitioner should do at the first instance.
Learned Government Pleader drew the attention of the Court to
the judgment of the Hon'ble Supreme Court, in Assistant
Commissioner of State Tax and Others V. M/s Commercial
Steel Limited [Civil Appeal No.5121 of 2021] dated
03.09.2021 where conditions are enumerated at paragraph 11
with regard to the circumstances, under which a party can move
before High Court viz., (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. It was further submitted that since in the
present case none of the four conditions are satisfied, the
petitioner be relegated to the Appellate Deputy Commissioner
(CT), Tirupathi.
5. Having considered the facts and circumstances of the
case and submissions of learned counsel for the parties, the
Court, for the present, is not inclined to interfere, primarily on
account of the factual aspects which, in the considered opinion of
the Court, Appellate the Deputy Commissioner (CT), Tirupathi is
more equipped to go into as it would require going through
documents and even taking of evidence. Moreover, since the
statute itself provides for an appellate forum, the same is meant
for giving opportunity to the aggrieved person to have
departmental remedy before invoking jurisdiction of the Court
and the Court would, thus, not short circuit such statutory
forums. In Filtrco's case (supra), the High Court of Madhya
Pradesh had dismissed the writ petition, whereas in the present
case, this Court after due consideration, is of the opinion that the
petitioner should first approach the Forum of the Appellate
Deputy Commissioner (CT), Tirupathi in the matter.
6. In the aforesaid background, the writ petition is disposed
of observing that the petitioner, if so advised, may avail the
remedy available to it by filing an appeal before the Appellate
Deputy Commissioner (CT), Tirupathi. Since the petitioner had
moved this Court within the time specified for filing such appeal,
in the event an appeal is filed before the Appellate Deputy
Commissioner (CT), Tirupathi, within three weeks from today, the
Appellate Deputy Commissioner (CT), Tirupathi, shall consider
and decide the same on merits, in accordance with law after
giving opportunity of hearing to the petitioner.
7. Miscellaneous petitions, if any pending, also stand
disposed of.
________________________________
(AHSANUDDIN AMANULLAH, J)
_________________________
(B. S. BHANUMATHI, J)
Note : C.C. by 24.12.2021
B/o. ikn
HON'BLE Mr. JUSTICE AHSANUDDIN AMANULLAH
AND
HON'BLE Ms. JUSTICE B.S. BHANUMATHI
WRIT PETITION No.30212 of 2021
Date : 22.12.2021
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