M/S. Bommineni Ramanjaneyulu ... vs The Joint Commissioner Of State ...
2022 Latest Caselaw 7053 AP

     IN THE HIGH COURT OF ANDHRA PRADESH:
                  AT AMARAVATI
                       ***

Writ Petition No.26870 of 2021 Between:

M/s.Bommineni Ramanjaneyulu, Special Class Contractor (RWS), D.No.6-35, Main Road, Yendluru Village, S.N. Padu Mandal, Prakasam District - 523 225.

.... Petitioner And

1) The Joint Commissioner of State Taxes, Nellore Division, Nellore - SPSR Nellore District & Four others.

....Respondents.

Date of Order pronounced on : 15.09.2022

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

AND

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

1. Whether Reporters of Local newspapers : Yes/No may be allowed to see the judgments?

2.Whether the copies of judgment may be marked: Yes/No to Law Reporters/Journals:

3.Whether the Lordship wishes to see the fair copy : Yes/No of the Judgment?

________________________________ JUSTICE C. PRAVEEN KUMAR

CPK, J & AVRB, J W.P.No.26870 of 2021

* THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

AND

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

+ Writ Petition No.26870 of 2021

% 15.09.2022

#M/s.Bommineni Ramanjaneyulu, Special Class Contractor (RWS), D.No.6-35, Main Road, Yendluru Village, S.N. Padu Mandal, Prakasam District - 523 225.

.... Petitioner And

$ 1) The Joint Commissioner of State Taxes, Nellore Division, Nellore - SPSR Nellore District & Four others.

....Respondents.

! Counsel for the Petitioner : Sri Shaik Jeelani Basha

Counsel for the Respondents: Sri Y.N. Vivekananda, Government Pleader for Commercial Tax.

<Gist :

>Head Note:

? Cases referred:

CPK, J & AVRB, J W.P.No.26870 of 2021

THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR

AND

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

Writ Petition No.26870 of 2021

ORDER:- (per the Hon'ble Sri Justice C. Praveen Kumar)

Heard Sri Shaik Jeelani Basha, learned counsel for

the petitioner and Sri Y.N. Vivekananda, learned

Government Pleader for Commercial Tax, appearing for the

respondents.

2. The present writ petition came to be filed, seeking

issuance of Writ of Mandamus to declare the Authorization

for access to Business premises issued under Section 71(1)

of the Andhra Pradesh Goods and Services Tax Act, 2017

[for short, "APGST Act"] by the first respondent dated

28.10.2021 in favour of the second respondent as contrary

to Sub-Section 91 of Section 2 read with Section 5(1) and

5(3) of the APGST Act.

3. The facts, in issue, in the present writ petition, are as

under:-

CPK, J & AVRB, J W.P.No.26870 of 2021

(a) The petitioner was engaged in the business of

works contracts and specialized in laying pipelines for

water supply projects. He got registered as Special Class

Contractor with RWS & Engineering Department,

Government of Andhra Pradesh with GSTIN

37AEWPB4986Q1ZB, on the rolls of the third respondent.

The case of the petitioner was selected for Audit in

accordance with Section 65 of CGST Act, by the Central

GST Audit Circle, Nellore, covering the period July-2017 to

March-2019 vide proceedings dated 17.08.2020. Pursuant

to the same, the records were submitted with the

authorities for finalization of the Audit proceedings.

(b) The authorities visited the business premises of

the petitioner on 29.10.2021 and obtained Xerox copies of

certain files for further verification. Exercising power under

Section 71(1) of the APGST Act, the first respondent issued

the impugned authorization to inspect the business

premises of the petitioner, verify and check the

transactions to safeguard the interest of the Revenue. The

said impugned proceedings came to be issued basing on an

information furnished by the second respondent.

Challenging the impugned authorization given by the first

CPK, J & AVRB, J W.P.No.26870 of 2021

respondent, in exercise of his power under Section 71(1) of

the APGST Act, the present writ petition came to be filed.

4. A counter came to be filed by the first respondent,

disputing the averments made in the affidavit filed in

support of the writ petition.

(a) It is pleaded in the counter that initially the

second respondent/Assistant Commissioner (ST), Ongole-II

made scrutiny of returns in Form GSTR-3B and GSTR-1

filed by the petitioner. Thereafter, a report was submitted

to the first respondent seeking authorization for verification

the truthfulness and correctness of the business

transactions. The first respondent issued authorization

through enforcement module following the procedure

contemplated under law. Pursuant to the said

authorization, the second respondent visited the

petitioner's firm on 29.10.2021, on which date, copies of

the documents were furnished and thereafter a notice was

issued on 07.12.2021 calling for records relating to period

from 01.04.2019 to 31.03.2021. At that point of time, the

authorities were informed about the filing of the writ

petition.

CPK, J & AVRB, J W.P.No.26870 of 2021

(b) It is stated that the averment made in the

affidavit filed in support of the writ petition that when once

the Chief Commissioner has authorized the Joint

Commissioner of the Division for accessing the petitioner,

the Joint Commissioner cannot further sub-delegate the

power to Deputy Commissioner or Assistant Commissioner

is incorrect.

5. Similarly, such pleas came to be raised in the counter

filed by the respondent nos.3 and 4.

6. A reply to the counters came to be filed by the

petitioner, reiterating the averments in the affidavit filed to

contend that under Section 5(3) of the APGST Act, the

Chief Commissioner alone has the power of delegating his

power to any other Officer subordinate to him.

7. The point that arises for consideration is, whether

the authorization given to the second respondent

herein by the Joint Commissioner is valid in law?

8. In order to appreciate the same, it would be just and

proper to refer to Section 71(1), Section 2(91) and Section 5

of the APGST Act.

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(i) Section 2(91) defines 'Proper Officer' in relation to any function to be performed under this Act, means the Chief Commissioner or the Officer of the State Tax who is assigned that function by the Chief Commissioner.

(ii) Section 5 Power of Officers:

(1) Subject to such conditions and limitations as the Chief Commissioner may impose, an officer of State Tax may exercise the power and discharge the duties conferred or imposed on him under this Act.

(2) An Officer of State Tax exercise the powers and discharge the duties conferred or imposed under this Act on any other officer of State Tax who is subordinate to him.

(3) The Chief Commissioner may, subject to such conditions and limitations as may be specified in this behalf by him, delegating his powers to any other officer who is subordinate to him.

(4) Notwithstanding anything contained in this section, an appellate authority shall not exercise the powers and discharge the duties conferred or imposed on any other officer of State Tax.

Section 71(1) Access to business premises:

(1) Any officer under this Act, authorized by the proper officer not below the rank of Joint Commissioner, shall have access to any place of business of a registered person to inspect books of account, documents, computers, computer programs,

CPK, J & AVRB, J W.P.No.26870 of 2021

computer software whether installed in a computer or otherwise and such other things as he may require and which may be available at such place, for the purposes of carrying out any audit, scrutiny, verification and checks as may be necessary to safeguard the interest of revenue.

9. A reading of Section 71(1) of the APGST Act, clearly

demonstrate that any Officer under this Act, authorized by

a Proper Officer not below the rank of Joint Commissioner

shall have access to place of any business of registered

person to inspect the books of accounts, documents .........

The Proper Officer referred to in Section 71(1) of the Act

would mean the Chief Commissioner or the Officer of the

State who is assigned that function by the Chief

Commissioner as defined in Section 2(91) of APGST Act.

10. It would also be relevant to refer to Gazette

Notification issued on 09.12.2019 by the Government of

Andhra Pradesh. The said notification postulate that in

exercise of the authority conferred under sub section (91)

of section 2 read with sub-section (1) of Section 5 of the

Andhra Pradesh Goods and Services Tax Act, 2017, and in

partial modifications of the proceedings/notifications

issued, the Chief Commissioner of State Tax hereby orders

CPK, J & AVRB, J W.P.No.26870 of 2021

that the "Proper Officers" for various functions referred to

in the Act, shall be those Officer (s) as mentioned against

each function in the list enclosed.

11. Serial 21 of the list, refers to Section 71(1), (2) & (2)(i)

of the Act. In the column 'Function', it is shown as "to

access business premises, inspect books of accounts,

documents, etc for Audit, Scrutiny, Verification".

While in the column 'Designation of Officer

authorised', it is mentioned as "JCST working in the

divisions/Addl. CST/Commissioner ST working in the

office of CCST entrusted with the enforcement activities".

12. From the above, it is very much evident that the

Proper Officer for the functions referred to Section 71(1) of

the Act, would be the three officers referred to in the

column designation of officer authorized and one such

Officer being Joint Commissioner (ST) working in the

Division. In the instant case, as seen from the impugned

proceedings, the authorization for access to business

purpose under Section 71(1) of APGST Act was issued by

Joint Commissioner (ST). Hence, the argument though

CPK, J & AVRB, J W.P.No.26870 of 2021

appeared to be impressive at the first stage, but on a close

perusal of the Notification issued, proved to be incorrect.

13. Therefore, the authorization given by the Joint

Commissioner pursuant to the Gazette Notification issued

by the Chief Commissioner authorizing certain categories

of persons cannot be found fault with. It is also to be

noted here that the authorization by the Chief

Commissioner came to be issued in terms of Section 2(91)

of the Act which categorically states that the "Proper

Officer" would mean not only the Chief Commissioner but

also Officer of the State Tax, who is assigned that function

by the Chief Commissioner.

14. In view of the above, we see no grounds to grant the

relief sought for by the petitioner, namely, to quash the

proceeding issued by Joint Commissioner authorizing the

Assistant Commissioner (ST) to conduct inspection/search

etc. of the premises of the petitioner. Accordingly, the writ

petition is dismissed. There shall be no order as to costs.

CPK, J & AVRB, J W.P.No.26870 of 2021

Miscellaneous petitions pending, if any, shall stand

closed.

_______________________________ JUSTICE C.PRAVEEN KUMAR

_________________________________ JUSTICE A.V. RAVINDRA BABU

Date: 15.09.2022 Note: LR copy to be marked.

B/o.MS

CPK, J & AVRB, J W.P.No.26870 of 2021

THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR

AND

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

Writ Petition No.26870 of 2021 (per the Hon'ble Sri Justice C. Praveen Kumar)

Date: 15.09.2022

MS