Telangana High Court

M/S.R.K.Distilleries Private ... vs The Additional Commissioner Of ... on 28 January, 2022

Bench: Satish Chandra Sharma, Abhinand Kumar Shavili

   THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                          AND
        THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

               WRIT PETITION Nos.3950 & 4118 of 2022

COMMON ORDER: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)

        Regard being had to the controversy involved in the aforesaid

cases, they were heard together and are being decided by a

common order.

        The facts of W.P.No.3950 of 2022 are reproduced as under:-

        The petitioner is aggrieved by the revision proceedings dated

18.09.2021 in CCT's Ref.No.LIII(2)/167/2020 issued by the

respondent No.1/Additional Commissioner of State Tax (Gr-I),

Hyderabad.

Section 32 of the Telangana Value Added Tax Act, 2005 (for

short 'the Act') reads as under:-

"32. Revision by Commissioner & other prescribed authorities: (1) The Commissioner may suo moto call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to him under the provisions of the Act, including sub-section (2) and if such order or proceeding recorded is prejudicial to the interests of revenue, may make such enquiry, or cause such enquiry to be made and subject to the provisions of the Act, may initiate proceedings to revise, modify or set aside such order or proceeding and may pass such order in reference thereto as he thinks fit.

(2) Powers of the nature referred to in sub-section (1) may also be exercised by the Additional Commissioner, Joint Commissioner, Deputy Commissioner and Assistant Commissioner in the case of orders passed or proceedings recorded by the authorities, officers or persons subordinate to them:

Provided that the power under sub-sections (1) or (2) shall not be exercised by the authority specified therein in respect of any issue or question, which is the subject matter of an appeal before or which was decided on appeal by the Appellate Tribunal under Section 33;

(3) In relation to an order of assessment passed under the Act, the powers conferred by sub-sections (1) and (2) shall be exercisable only within a period of four years from the date on which the order was served on the dealer.

(4) No order shall be passed under sub-section (1) or (2) enhancing any assessment unless an opportunity has been given to the dealer to show cause against the proposed enhancement.

(5) It shall be lawful for the Commissioner to defer any proceedings under this section by the reason of the fact that an appeal or other proceeding is pending before the Appellate Tribunal or the High Court or the Supreme Court involving a question of law having a direct bearing on the order or proceeding in question.

(6) Where an order passed under this section has been set aside by any court or other competent authority under the Act for any reason, the period between the date of such order and the date on which it has been so set aside shall be excluded in computing the period of four years specified in sub-section (3), for the purpose of making a fresh revision, if any, under this section.

(7) Where any proceeding under this section has been deferred on account of any stay order granted by the Appellate Tribunal or the High Court or the Supreme Court in any case, or by reason of the fact that an appeal or other proceeding is pending before the High Court or the Supreme Court involving a question of law having a direct bearing on the order or proceeding in question, the period during which the stay order was in force or such appeal or proceeding was pending shall be excluded in computing the period of four years specified in sub-section (3), for the purposes of exercising the power under this section."

The aforesaid statutory provision empowers the

Commissioner and other prescribed authorities to suo motu revise

an earlier order and the same has been done in the present case.

It is nobody's case that the impugned order has been passed by an

authority jurisdictionally incompetent to do so.

Learned counsel for the petitioner has vehemently argued

before this Court that the revisional authority has erred in law in

passing the impugned order and therefore, as the order is

erroneous and the judgments of the Hon'ble Supreme Court have

not been looked into in proper perspective, the petitioner has

rightly preferred a writ petition before this Court.

Section 33 of the Act reads as under:-

"33. Appeal to the Appellate Authority: (1) any dealer objecting to an order passed or proceeding recorded:-

(a) by any authority, on appeal under section 31; or

(b) by the Additional Commissioner or Joint Commissioner or Deputy Commissioner under sections 21 or 32 or 38; or

may appeal to the Appellate Tribunal within sixty days from the date of service of the order or proceeding on him.

(2) The Appellate Tribunal may within a further period of sixty days admit the appeal preferred after the period of sixty days specified in sub-section (1), if it is satisfied that the dealer had sufficient cause for not preferring the appeal within that period: Provided that no appeal against the order passed under section 31 shall be admitted under sub-section (1) or sub-section (2) of this section unless it is accompanied by satisfactory proof of the payment of fifty percent of the tax, penalty, interest or any other amount as ordered by the Appellate Authority under section 31; Provided further that no appeal against the order passed under sub-section (2) of section 32 shall be admitted under sub-section (1) or sub-section (2) unless it is accompanied by satisfactory proof of the payment of the tax, penalty, interest or any other amount admitted by the appellant to be due or of such instalments as might have become payable, as the case may be, and twenty five percent of the difference of the tax, penalty, interest or any other amount ordered by the revisional authority under sub-section (2) of section 32 and the tax, penalty, interest or any other amount admitted to be due and paid by the appellant:

Provided also that no appeal against the order, passed by any authority by following the ruling or order, issued under Section 67, shall be admitted under sub-section (1) or sub-section (2), unless it is accompanied by satisfactory proof of the payment of the tax, penalty, interest or any other amount, admitted by the appellant to be due or payable or of such instalments thereof, as might have become payable, as the case may be and the proof of payment of fifty percent of the difference of the tax penalty, interest or any other amount, levied by the authority by following the ruling, issued under section 67, and the tax, penalty, interest or any other amount admitted to be due and paid by the appellant:

Provided also that the authority prescribed shall refund the said amount of twelve and half percent or twenty five percent or fifty percent of the difference of tax, penalty, interest or any other amount assessed by the authority prescribed or revisional authority as the case may be and the tax, penalty, interest or any other amount admitted and paid by the appellant, with interest calculated at the rate of 12% per annum if the refund is not made within 90 days from the date or receipt of the order passed under section 31 or section 33.

(3) The appeal shall be in the prescribed form, shall be verified in the prescribed manner, and shall be accompanied by such fee which shall not be less than Rupees One hundred only but shall not exceed Rupees two thousand only as may be prescribed.

(4) The Appellate Tribunal may, after giving both parties to the appeal a reasonable opportunity of being heard:-

(a) confirm, reduce, enhance or annul the assessment or the penalty or both; or

(b) set aside the assessment or the penalty or both, and direct the authority prescribed to pass a fresh order after such further inquiry as may be directed; or

Provided that if the appeal involves a question of law, a decision on which is pending in any proceeding before the High Court or the Supreme Court, the Appellate Tribunal may defer the hearing of the appeal before it, till such proceeding is disposed of.

(5) (a) Before passing any order under sub-section (4), the Appellate Tribunal may make such inquiry as it deems fit or remand the case to the appellate authority against whose order the appeal was preferred or to the authority prescribed concerned, for an inquiry and report on any specified point or points.

(b) Notwithstanding anything contained in sub-section (4), where the VAT dealer or TOT dealer or any other dealer who has filed an appeal to the Appellate Tribunal fails to appear before the Appellate Tribunal either in person or by counsel when the appeal is called on for hearing, it shall be open to the Tribunal to make an order dismissing the appeal:

Provided that the Appellate Tribunal may, on an application made by the dealer within thirty days from the date of communication of the order of dismissal and on sufficient cause being shown by him for his non-appearance when the appeal was called on for hearing, re-admit the appeal on such terms as it thinks fit, after giving notice thereof to the authority against whose order or proceeding the appeal was preferred.

(6) (a) Where a VAT dealer or TOT dealer or any other dealer, objecting to an order passed or proceeding recorded by a Deputy Commissioner under Section 21 or 32 has preferred an appeal to the Appellate Tribunal, the Additional Commissioner, or the Joint Commissioner may, on an application filed by the dealer, subject to such terms and conditions, as he may think fit, order stay of collection of the tax under dispute pending disposal of the appeal by the Appellate Tribunal;

(b) The payment of tax and penalty, if any, due in accordance with the order of the first appellate authority or of the Deputy Commissioner under Section 21 or in revision under Section 32, in respect of which an appeal has been preferred under sub-section (1), shall not be stayed pending disposal of the appeal.

(7) Except as provided in the rules Appellate Tribunal shall not have the power to award costs to either of the parties to the appeal.

(8) Every order passed by the Appellate Tribunal under sub- section (4) shall be communicated by it to the dealer, the authority against whose order the appeal was preferred, the Commissioner and such other authorities as may be prescribed.

(9) Every order passed by the Appellate Tribunal under sub- section (4) shall, subject to the provisions of Section 34 be final."

The aforesaid statutory provision of law makes it very clear

that there is a remedy of appeal against an order passed under

Section 32 of the Act.

In the considered opinion of this Court, as the petitioner was

heard by the revisonal authority while passing the impugned order,

and the revsional authority was jurisdictionally competent to pass

such an order, the petitioner has to prefer an appeal, keeping in

view the statutory remedy of appeal available under the Act. All the

grounds raised by the petitioner will certainly be looked into by the

appellate authority and the petitioner shall be free to place reliance

upon the judgments of the Hon'ble Supreme Court as well as other