Andhra Pradesh High Court - Amravati
M/S. K Heeraman Naik vs Commercial Tax Officer on 28 November, 2023
*HON'BLE SRI JUSTICE RAVI NATH TILHARI
AND
*HON'BLE SRI JUSTICE A. V. RAVINDRA BABU
+WRIT PETITION No.27609 OF 2023
%28.11.2023
# M/s. K. Heeraman Naik,
Work Contractor,
Represented by the Proprietor:-
Sri K. Heeraman Naik,
D.No.13/37, Main Road,
Sugalimitta,
Village Panyam Mandal,
Kurnool, A.P. 518 521.
......Petitioner
And:
$1. Commercial Tax Officer,
Nandyal No-1 Circle,
Door No: 25/3A & 25/3B,
M.S.R. Complex, R.S. Road,
Near RTC Bus Stand,
Nandyal (AP),
PIN: 518 501
and others.
....Respondents.
!Counsel for the petitioner : Sri G. Venkateswarlu,
learned counsel,
representing
Sri J. N. Venkata Suresh
Kumar, learned counsel
for the petitioner.
^Counsel for the respondents : Sri Shreyas Reddy, learned
Government Pleader
for Commercial Tax for the
respondents.
<Gist:
>Head Note:
? Cases referred:
2
HIGH COURT OF ANDHRA PRADESH
WRIT PETITION No. 27609 of 2023
M/s. K. Heeraman Naik,
Work Contractor,
Represented by the Proprietor:-
Sri K. Heeraman Naik,
D.No.13/37, Main Road,
Sugalimitta,
Village Panyam Mandal,
Kurnool, A.P. 518 521.
......Petitioner
And:
1. Commercial Tax Officer,
Nandyal No-1 Circle,
Door No: 25/3A & 25/3B,
M.S.R. Complex, R.S. Road,
Near RTC Bus Stand,
Nandyal (AP),
PIN: 518 501
and others.
....Respondents.
DATE OF JUDGMENT PRONOUNCED: 28.11.2023.
3
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HON'BLE SRI JUSTICE A. V. RAVINDRA BABU
1. Whether Reporters of Local newspapers may Yes/No
be allowed to see the Judgments?
2. Whether the copies of judgment may be marked
to Law Reporters/Journals? Yes/No
3. Whether Your Lordships wish to see the fair
Copy of the Judgment?
Yes/No
________________________
RAVI NATH TILHARI, J
________________________
A. V. RAVINDRA BABU, J
4
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
WRIT PETITION No.27609 OF 2023
JUDGMENT:
- (per Hon'ble Sri Justice Ravi Nath Tilhari)
Heard Sri G. Venkateswarlu, learned counsel, representing
Sri J. N. Venkata Suresh Kumar, learned counsel for the
petitioner, appearing through Virtual Mode and Sri Shreyas
Reddy, learned Government Pleader for Commercial Tax for the
respondents.
2. This Writ Petition under Article 226 of the
Constitution of India has been filed challenging the impugned
assessment orders dated 31.01.2022 and the order of penalty
dated 30.03.2022.
3. Preliminary objection has been raised by the
learned Government Pleader for Commercial Tax that the
petitioner has equally efficacious alternative remedy of Appeal to
challenge the impugned orders under the Andhra Pradesh Value
Added Tax Act, 2005 (in short, APVAT Act), and in view thereof
the writ petition deserves not to be entertained.
4. Learned counsel for the petitioner does not dispute
the existence of the statutory alternative remedy of appeal, but
submits that in passing the impugned orders there is violation
of the principles of natural justice and consequently, the writ
petition deserves to be entertained.
5. We have considered the submissions advanced and
perused the material on record.
6. A perusal of the impugned order shows that a show
cause notice AP VAT 310, was issued on 28.10.2021 to the
dealer for verification of books of accounts, but the dealer did
not turn up for submission of documents. A show cause notice
dated 17.11.2021 was also issued to the dealer to file written
objections, but the dealer did not file the written objections.
Further, personal hearing Notice-I and personal hearing Notice-
II were sent through postal authorities on 01.12.2021 and
14.12.2021 to submit the written objections as also to appear in
person on the dates mentioned in the notices. A final notice
cum personal hearing Notice-III dated 11.01.2022 was also sent,
but the dealer did not turn up. Accordingly, the order dated
31.01.2022 was passed directing to pay the undeclared tax and
interest. The order also mentioned about the proceedings for
imposing the penalty and the penalty proceedings to be issued
separately. Subsequently, the order of penalty dated 30.03.2022
was also passed. A perusal thereof also shows that with respect
to the penalty, show cause notice dated 31.01.2022 and
thereafter the personal hearing notice-I dated 11.02.2022,
personal hearing notice-II dated 19.02.2022, and personal
hearing notice-III dated 28.02.2022 were also issued but the
dealer did not turn up and accordingly the order imposing the
penalty was also passed.
7. Learned counsel for the petitioner submits that the
copy marked to him was not served on him and about the
notices mentioned in the impugned orders, the petitioner was
not aware.
8. The respondents have filed the counter affidavit and
learned Government Pleader submitted that in the counter
affidavit specific stand is that as per the records available, all
the notices and orders were served on the petitioner with valid
mode of service. In this respect, Para 5 of the counter has been
referred, which also gives a table with respect to the service of
the notices, and reads as under:-
"5. The records available in this office, all the notices and orders
were served on the petitioner with valid mode of service as prescribed
under Rule 64(1)(b) & 64(1)(c) of the APVAT Rules, 2005 as detailed
hereunder in the table form.
Sl. Name of Notice/Order Served on the mode of
No. service on the petitioner
1 Summons Dated 14.07.2021 By e.mail on 14.07.2021
2 Notice dated 20.09.2021 By e.mail on 21.09.2021
3 Notice for production of By ordinary post and by e.mail
documents and records Dated on 01.11.2021
28.10.2021
4 Personal hearing Notice-I By Ordinary Post on
dated 01.12.2021 for Tax Pre- 01.12.2021
Assessment Notice
5 Personal hearing Notice-II By Ordinary Post on
dated 13.12.2021 for Tax Pre- 14.12.2021
Assessment Notice
6 Personal hearing Notice-III By Ordinary Post on
dated 11.01.2021 for Tax Pre- 17.01.2022 & by Regd. Post on
Assessment Notice 01.02.2022 vide No.
RN654497205IN
7 Assessment Order in VAT-305 By Registered Post
Dated 31.01.2022 on 11.03.2022 vide
No.RN6747523335IN
8 Penalty Show Cause Notice in By Registered Post
VAT-203A Dated 31.01.2022 on 11.03.2022 vide
No.RN674752349IN
9 Personal hearing Notice-I By Ordinary Post and by
dated 11.02.2022 for Penalty e.mail on 11.02.2022
SCN
10 Personal hearing Notice-II By Ordinary Post and by
dated 19.02.2022 for Penalty e.mail on 21.02.2022
SCN
11 Personal hearing Notice-III By e.mail on 03.03.2022
dated 28.02.2022 for Penalty
SCN
12 Personal hearing Notice-I By Ordinary Post and by
dated 16.03.2022 for Penalty e.mail on 16.03.2022
SCN
13 Penalty Orders in VAT-203 By Regd. Post on 31.03.2022
Dated 30.03.2022 vide No.RN674753446IN e.mail
on 31.03.2022
The mode of service and date of mode indicated in the above
table clearly depicts that all the notices and orders were served on the
petitioner by post as well as through e.mail to the e.mail ID furnished
by the petitioner, which are valid mode of services as prescribed
under Rule 64(1)(c) of the APVAT Rules, 2005. In this connection, it
is respectfully submitted that the Government of Andhra Pradesh vide
G.O.Ms.No.437 Dated 19.09.2016 added Clause (c) to Sub-Rule (1) to
Rule 64 of the APVAT Rules „sending by e.mail to the e.mail ID
furnished by the dealer‟ (Copy enclosed as Annexure.I). In the instant
case, all the notices were sent by e.mail to the e.mail ID
furnished by the petitioner to the Department, viz.,
[email protected]. Further, Personal hearing
Notice-III dated 11.01.2022 for Tax Pre-Assessment Notice;
Assessment Order in VAT-305 Dated 31.01.2022; Penalty Show
Cause Notice in VAT-203A Dated 31.01.2022 and Penalty Orders in
VAT-203 Dated 30.03.2022 were served on the petitioner by registered
post as per this office records as stated in the above table. A copy of
the postal acknowledgment receipts issued by the postal authorities is
herewith enclosed as Annexure.II. Hence, all the notices and order
were served through valid mode service as stated in the above table.
For the afore-stated reasons, there neither violation of the
fundamental procedure nor violation of the Principles of Natural
Justice by the Respondent No.1 as alleged by the petitioner."
9. The specific stand of the respondents is that the
order is passed in consonance with the principles of natural
justice of following statutory provisions by serving the notices to
which the dealer did not respond. Consequently, the submission
is that there is no violation of neither the fundamental
procedure nor the principles of natural justice.
10. Learned counsel for the petitioner, at the time of
hearing, initially, requested for time to file reply affidavit, but
then submitted that the reply affidavit is not required and the
only point is no service of notice and violation of the principles
of natural justice. Consequently, he would argue the matter
without filing reply affidavit. The matter was heard.
11. The specific averment regarding service of notice,
inter alia in Para 5 of the counter affidavit thus remain
uncontroverted. We have no reason to disbelieve the same.
12. Rule 64 of the Andhra Pradesh Value Added Tax
Rules, 2005 (in short, the Rules 2005), on the mode of service of
orders of notices, provides as under:-
"64. Mode of Service of orders and notices:-
(1) Unless otherwise provided in the Act, or these Rules, a
notice or other document required or authorized under
the Act or these Rules to be served shall be considered as
sufficiently served,-
(a) on a person being an individual other than in a
representative capacity if,-
(i) it is personally served on that person; or
(ii) it is left at the person‟s usual or last known place of
residence or office or business in the State; or
(iii) it is sent by registered post to such place of
residence, office or business, or to the person's usual or
last known address in the State; or
(b) on any other person if,-
(i) it is personally served on the nominated person; or
(ii) it is left at the registered office of the person or the
person‟s address for service of notices under the Act; or
(iii) it is left at or sent by registered post to any office or
place of business of that person in the State;
(iv) where it is returned unserved, if it is put on board in
the office of local chamber of commerce or traders
association.
(c) or by e_mail to the e_mail I.D. furnished by the dealer.
(2) The certificate of service signed by the person serving
the notice shall be evidence of the facts stated therein."
13. It is evident from Rule 64 (1), that a notice required
or authorized under the Act or the Rules to be served shall be
considered as sufficiently served, if it is sent by registered post
to such place of residence, office or business or to the person‟s
usual or last known address in the State. Clause (c) of Rule 64
(1) provides for sending the notice through E-mail. In view of
Rule 64, and Para 5 of the counter affidavit which shows
sending of the notices by Post or/and E-mail, it shall be
considered in law that the dealer was sufficiently served.
Anything to the contrary has not been brought on record.
14. Learned counsel for the petitioner placing reliance
on sub-rule (2) of Rule 64, submitted that there is no certificate
of service annexed to the counter affidavit.
15. We are of the considered view that under sub-
section (1), "shall be considered as sufficiently served" is not
dependent upon the certificate of service under sub-section (2).
Besides, the averments of Para 5 of the counter affidavit having
not been controverted on oath, the question of proof by
certificate of service in evidence, does not arise in the present
case.
16. We do not find force in the submission of the
learned counsel for the petitioner that the orders impugned
have been passed in violation of the principles of natural justice
for the argument of no service of the notices before passing the
impugned orders.
17. No other point was argued.
18. The petitioner has the statutory alternative remedy.
Without prejudice to that right, but subject to the due process
of law and the law of limitation, the petitioner is at liberty to
avail statutory remedy, on such grounds as may be open, other
than the one dealt with in this judgment, if so advised, this writ
petition is dismissed.
No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending,
shall also stand closed.
__________________________
RAVI NATH TILHARI, J
___________________________
A.V.RAVINDRA BABU, J
Date: 28.11.2023
Note:-
L.R. Copy to be marked
B/o:- SCS
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
WRIT PETITION No.27609 OF 2023
(per Hon'ble Sri Justice Ravi Nath Tilhari)
Date: 28.11.2023
Note:-
L.R. Copy to be marked
B/o:- SCS
