Telangana High Court

M/S.Maa Sai Surgicals And Co vs The Assisstant Commissioner Of State ... on 16 October, 2024

         THE HONOURABLE SRI JUSTICE SUJOY PAUL
                          AND
THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

         WRIT PETITION Nos.35084 AND 35095 OF 2022

COMMON ORDER:

(per Hon'ble Justice Sujoy Paul)

Sri T.S.Murthy, learned counsel for the petitioners and

Sri Swaroop Oorilla, learned Special Government Pleader for

State Tax, for the respondents.

2. Regard being had to the similitude of the questions

involved, on the joint request of the parties, the matters are

analogously heard and decided by this common order.

3. The facts are taken from WP.No.35084 of 2022.

4. The petitioner is carrying business as a retail dealer in

surgical goods, medical equipments/devices and implants bolts

and partly drugs and medicines.

5. Learned counsel for the petitioner submits that the

assessment order dated 31.03.2019 (Annexure P.1) is called in

question in this petition. The petitioner was never served with

this Assessment order dated 31.03.2019 or any show-cause

notice before that. For the first time, he came to know about

this Assessment order by E-mail dated 18.05.2022 (Annexure

P.4), whereby, the petitioner was intimated about pending

arrears for one time settlement scheme. The petitioner,

promptly, filed application seeking a copy of the Assessment

order on 28.06.2022 (Annexure P.2). In turn, the certified copy

of the impugned order dated 31.03.2019 was supplied to the

petitioner. The specific case of the petitioner is that as per the

assessment year 2014-15 under the Central Sales Tax Act,

1956 (for short "the Act"), the last date of passing of order

under Section 21 (4) of the Act was 31.03.2019. The

Assessment order was actually not passed on 31.03.2019.

Instead, it is passed subsequently and was ante dated. For this

reason, order was not supplied to the petitioner and he came to

know about the said order only when he received the certified

copy. In support of his submission, he placed reliance on the

judgment of Apex Court in State of Andhra Pradesh v.

M.Ramakishtaiah and Company, Khetmal Parekh 1.

6. Learned Special Government Pleader for State Tax

supported the Assessment order and urged that the petitioner

has not approached this Court with a pair of clean hands.

As per counter, the Assessment order was sent to the petitioner

on 10.10.2019 through registered post. Although, the

LAWS (SC)1994 2 58

respondents have not filed any acknowledgment along with

counter, the petitioner was served with Assessment order in

October, 2019 itself and therefore, he could have availed the

remedy of appeal as per Section 31 of the Act within the

statutory time period. For this reason alone, the petition is

liable to be dismissed.

7. Faced with this, learned counsel for the petitioner submits

that there is no explanation for delay between 31.03.2019

(when Assessment order was allegedly passed) and 10.10.2019

(when Assessment order was allegedly sent to the petitioner).

Thus, it can be presumed that the order was ante dated to

wriggle out the last date of limitation, within which, the order

could have been passed.

8. No other point is pressed by the learned counsel for the

parties.

9. The petitioner in the Writ Affidavit categorically pleaded

that the Assessment order was first time served on him, when

he obtained certified copy (Annexure P.1). Sounding a contra

note, in the counter, although, it is averred that said

Assessment order was sent on 10.10.2019, no proof of

service/acknowledgement has been filed. The petitioner in his

rejoinder categorically denied that such order is ever received by

him.

10. The Apex Court in M.Ramakishtaiah and Company,

Khetmal Parekh's case held as under:

" This appeal is preferred against the judgment of the A. P. High court allowing the tax revision case filed by the respondent-assessee under section 22 of the A. P. General Sales Tax Act. The order of assessment was made in the month of September, 1969. That order was sought to be revised by the Deputy Commissioner under Ss. (2 of section 20 of the Act. After hearing the respondent, the Deputy Commissioner passed orders prejudicial to the assessee. The Deputy Commissioner says that he passed the said orders on 6/01/1973, but it was served upon the assessee only on 21/11/1973. According to section 20, an order in revision must be passed within four years of the order of assessment. In this case, service of this order is after the expiry of four years from the date of the order of assessment. In the circumstances, the assessee raised a contention that the order was in fact made after the expire' of four years but was ante-dated, and therefore, it is bad. The High court accepted this submission but on a different reasoning. The High court was of the opinion that every order must be communicated within a reasonable period and since the order of the Deputy Commissioner in this case was not so communicated, the High court declared that the respondent- assessee shall not be bound by it. This was done by the High court following its decision in T. R. C. No. 1 of 1976 pronounced on the same day [against which judgment Civil No. 1014 of 1977 (in this batch) has been filed). We are of the opinion that the theory evolved by the High court may not be really called for in the circumstances of the case. We are of the opinion that this appeal has to be dismissed on the ground urged by the assessee himself. As stated above, the order of the Deputy Commissioner is said to have been made on 6/01/1973, but it was served upon the assessee on 21/11/1973. i.e., precisely 10 months later. There is no explanation from the Deputy Commissioner why it was so delayed. If there had been a proper explanation, it would have been a different matter. But, in the absence of any explanation whatsoever, we must presume that the order was not made on the date it purports to nave been made.