Andhra Pradesh High Court - Amravati
M/S. Cjn Hitech Motors Private ... vs Assistant Commissioner State Tax on 22 November, 2021
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
HON'BLE Mr. JUSTICE AHSANUDDIN AMANULLAH
AND
HON'BLE Mr. JUSTICE B. KRISHNA MOHAN
WRIT PETITION No.27083 OF 2021
M/s. CJN Hitech Motors Private Limited,
rep.by its Director, Mr. C. Niranjan,
S. No. 714/2, Tukivakam Village,
Chennai-Bangalore Highway,
Tirupati Rural, Tirupathi - 517 520,
Chittoor District, Andhra Pradesh.
... Petitioner
Versus
1.Assistant Commissioner (State Tax),
Tirupathi-II Circle, Tirupathi
2.State of Andhra Pradesh
Rep. by its Principal Secretary to Government,
Revenue (CT) Department, Secretariat,
Velagapudi, Amaravati, Guntur District
3. Union of India, rep by its Secretary,
Ministry of Finance, 3rd Floor,
Jeevan Deep Building, Sansad Marg,
New Delhi-110 001.
... Respondents
Counsel for the petitioner : Mr. P. Karthik Ramana
Counsel for the respondents : Mr. Y. N. Vivekananda, Government
Pleader, Commericial Tax
Mr. N. Harinath, Assistant Solicitor
General of India
ORAL JUDGMENT
Dated: 22.11.2021
(Per Hon'ble Mr. Justice Ahsanuddin Amanullah)
Heard Mr. S. Dwarakanath, learned Senior Counsel, assisted
by Mr. P. Karthik Ramana, learned counsel for the petitioner; Mr. Y.
N. Vivekananda, learned Government Pleader, Commercial Tax, for
the respondents no. 1 and 2 and Mr. N. Harinath, learned Assistant
Solicitor General of India for the respondent no.3.
2. The petitioner has moved to the Court for the following
relief:
"....to issue a Writ of Certiorari or any other appropriate
writ or order or direction quashing the impugned order in DRC-
07, dated 31.8.2021, for the tax periods 2018-19 and 2019-20
(upto December, 2019) as illegal, contrary to law without
jurisdiction in violation of principles of natural justice and the
provisions of Section 75(7) and 74(10) of the Central Goods and
Services Tax Act, 2017, and pass ....."
3. The petitioner was initially sent a demand notice by the
respondent no.1 on 12.03.2021 and objections for the same were
submitted on 15.04.2021. It was followed by another notice, dated
24.04.2021, proposing to levy tax as also penalty. In terms of the
said notice, personal hearing was given to the petitioner on
21.06.2021 and the petitioner also submitted certain documents
before the authority concerned and finally a notice was issued on
19.07.2021 followed by the impugned order imposing tax and 100%
penalty.
4. Learned counsel for the petitioner submitted that though in
the initial notice dated 24.04.2021, the rate of penalty was shown as
25% and the same was also quantified, in the final order the rate has
been enhanced to 100%, which is illegal and impermissible.
5. Further, it was contended that after submission of
documents by the petitioner, it was incumbent on the respondent
no.1, as per Section 75(4) of the Andhra Pradesh Goods and Services
Tax Act, 2017 (for short the 'Act') to provide it with an opportunity of
personal hearing as an adverse decision was contemplated. It was
submitted that in view of the aforesaid position, the assessment
order is required to be set aside and the petitioner being given an
opportunity to explain the documents submitted to the authority
concerned.
6. Learned counsel submitted that under Section 107(11) of
the Act, there is no power of the Appellate Authority to remand the
matter to the Assessing Authority and thus even if his contention is
accepted by the Appellate Authority, he would not be able to do
proper justice by remanding the matter to the Assessing Authority.
7. Learned Government Pleader submitted that such
contention is erroneous for the reason that the law gives power to the
Appellate Authority under Section 107(11) of the Act to pass such
order as it thinks just and proper, confirming, modifying or annulling
the decision or order appealed against. It was submitted that in the
present case, if there was any discrepancy with regard to the actual
penalty imposed, which was not in terms of the notice given, the
Appellate Authority could very well modify the same at his level.
Further, it was submitted that if at all the contention that the
documents upon which some adverse findings have been recorded, is
accepted during hearing by the Appellate Authority, to that extent,
the decision of the Assessing Authority can be annulled. Thus, it was
contended that the Appellate Authority is the forum, which can deal
with the present situation and the petitioner is required to go before
such authority.
8. Faced with the situation, learned counsel for the
petitioner submitted that he is ready to approach the appellate
forum. A prayer was made that since the time for filing the statutory
appeal is going to expire by the end of the month, since the petitioner
was bonafide in approaching this Court, it may be permitted to prefer
the appeal by 10.12.2021.
9. Having considered the facts and circumstances of the
case and submissions of the learned counsel for the parties, this Writ
Petition is disposed of with liberty to move an appeal under Section
107 of the Act. If the same is done by 10.12.2021, in accordance with
law, the Appellate Authority shall consider the matter on merits after
giving opportunity of hearing to the petitioner, and pass orders
thereupon expeditiously.
10. The writ petitioner shall not be forced to deposit the tax
in dispute, till filing of the appeal in accordance with law.
11. The original certified copy of the order be returned by
Registry to learned counsel for the petitioner under due
acknowledgement of the advocate on record for the petitioner by
26.11.2021.
12. Miscellaneous petitions, if any pending also stand
disposed of.
_______________________________
(AHSANUDDIN AMANULLAH, J)
________________________
(B. KRISHNA MOHAN, J)
Note: Issue CC by 23.11.2021
B/o
AKN
HON'BLE Mr. JUSTICE AHSANUDDIN AMANULLAH
AND
HON'BLE Mr. JUSTICE B. KRISHNA MOHAN
WRIT PETITION No.27083 of 2021
Date : 22-11-2021
Akn
