M/s. Mecon Limited v. Deputy Commissioner (CT)

(per the Hon’ble Sri Justice Goda Raghuram) The order of first respondent dt.9.9.2009 revising the assessment under the Andhra Pradesh General Sales Tax Act, 1957 (for short, ‘the APGST Act’) for the assessment year 2003-2004 in respect of the petitioner, under Section 20(2) of the Act, and the consequential order of the second respondent dt.1.10.2009 intimating the demand for payment of the balance tax of Rs.4,58,42,351/-, are assailed in this Writ Petition. The petitioner is a Government of India company and a registered dealer on the file of second respondent. The second respondent accepted the claim of the petitioner for exemption in respect of import sales to a tune of Rs.1,66,00,000/- under Section 5(2) of the Central Sales Tax Act, 1956 (for short, ‘the CST Act’) and the claim in respect of Rs.57,00,00,000/- of turnover in this regard being inter-state purchases, on the ground that movement of goods occurred in the course of inter- state trade and therefore was outside the purview of tax under Section 38 of the APGST Act read with Section 5F thereof, by the order of assessment dt.2.2.2007.

While so, first respondent issued a show cause notice dt.17.9.2008 proposing to disallow the exemption accepted by the assessing authority on turnover of Rs.57,30,29,390/- relating to inter-state purchases on the material incorporated in the execution of the works related to SHAR on the ground that these purchases are not covered by any contractual obligations. In its reply dt.1.10.2008, the petitioner set out its objections to the proposal of revision and also sought personal hearing. Personal hearing was accorded on 6.11.2008, but the petitioner sought further time of two months by its letter dt.7.11.2008 to marshal the material and information for buttressing its objections to the proposal for revision. Eventually, the petitioner appeared before first respondent on 6.1.2009 along with the material in support of its claims for resisting the proposal for revision. The personal hearing, according to the petitioner, was before a different officer, the then Deputy Commissioner of Commercial Taxes.

However, by the order impugned of first respondent dt.9.9.2009, an officer different from the earlier officer (who granted personal hearing to the petitioner and heard the petitioner) passed the order of revision, confirming the show cause notice issued and bringing the turnover of Rs.57,46,27,850/- to tax. A consequent order of demand dt.1.10.2009 was issued by second respondent. As the petitioner has sought personal hearing which was also acceded to by the respondent, it was incumbent that the same officer who heard the petitioner at the personal hearing must have passed the final order exercising revisional powers under Section 20(2) of the APGST Act. That a different officer than one who presided over the personal hearing in the revisional proceedings had passed the impugned order of revision dt.9.9.2009, is not a fact that is contested on behalf of the respondents. In the circumstances, the order dt.9.9.2009 passed by first respondent, in purported exercise of revisional powers under Section 20(2) of the APGST Act is therefore, unsustainable.