Order:- (Per The Hon'Ble Sri ... vs M/S.Glaxo Smith Kline Consumer ...
2022 Latest Caselaw 5025 AP

     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

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.

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

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

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

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

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