2021 (7) TMI 517 - HC - VAT and Sales Tax

Dealer's Right to Challenge ACAR Decision & VAT Tribunal Delays

M/s. Gail (India) Ltd., Versus The Assistant Commissioner (CT), Authority for Clarification and Advance Rulings, The Chief Commissioner (ST), The State of Andhra Pradesh, The Secretary,

The Court held that a dealer who sought clarification and advance ruling from the Authority for Clarification and Advance Ruling (ACAR) is entitled to ... Maintainability of review petition - Authority to undertake a review contemplated under Section 67(5) of Andhra Pradesh Value Added Tax, 2005 - review can be undertaken only by the Authority for Clarification and Advance Ruling (ACAR) by exercising suo motu power or whether a dealer who invited clarification and advance ruling from ACAR can also seek for review being not satisfied with its order? HELD THAT:- Section 67 makes it clear that the review petition is maintainable at the instance of the dealer who is affected by the ruling of ACAR. Then coming to the argument of the learned Government Pleader that since the petitioner has already filed the appeal and the same is pending and therefore, the review petition is not maintainable is concerned, we do not find force in the said argument in view of the peculiar facts and circumstances. It is true that the petitioner filed the appeal before the VAT Tribunal - However, since the regular Chairman of the Tribunal is not functioning and as the Principle District & Sessions Judge, Visakhapatnam is holding the functions of the Tribunal as a Full Additional Charge only half-a-day for a week and in the meanwhile the notice of assessment of VAT dated 12.11.2020 was issued by 1st respondent, the petitioner has no other go except filing a review petition before ACAR. Upon review petition being numbered by virtue of this order, the petitioner shall withdraw the appeal pending before the VAT Tribunal and then only proceed with the review petition - the 2nd respondent is directed to consider the review petition dated 14.12.2020 filed by the petitioner and afford personal hearing to the petitioner and pass appropriate orders - Petition allowed. Issues:1. Whether a review petition can be undertaken by the dealer who invited clarification and advance ruling from the Authority for Clarification and Advance Ruling (ACAR)Rs.Analysis:The judgment revolves around the question of whether a review contemplated under Section 67(5) of the Andhra Pradesh Value Added Tax Act, 2005 can be undertaken by the dealer who sought clarification and advance ruling from the ACAR. The petitioner, a Government of India Enterprise dealing with natural gas, claimed Input Tax Credit (ITC) and sought clarification through advance ruling regarding the claim. The ACAR's order rejected the clarification application, prompting the petitioner to file an appeal before the A.P. VAT Appellate Tribunal. However, due to delays in the Tribunal's proceedings and the urgency involved, the petitioner filed a review petition seeking to challenge the ACAR's order. The 3rd respondent initially rejected the review application, stating that the review under Section 67(5) can only be initiated by the ACAR suo motu and not by the dealer.The Court analyzed Section 67 of the AP VAT Act, particularly Sub-Section (5), which grants the ACAR the power to review, amend, or revoke its rulings at any time for good and sufficient cause, providing affected parties with an opportunity to be heard. The Court emphasized that the provision does not explicitly limit the review power to only suo motu actions by the ACAR. Citing a previous Division Bench ruling, the Court highlighted that any dealer affected by the ACAR's ruling is entitled to seek review, amendment, or revocation of the ruling. The Court also noted instances where the ACAR had entertained review proceedings initiated by concerned dealers. Consequently, the Court found that the review petition is maintainable at the instance of the dealer affected by the ACAR's ruling.Regarding the argument that the review petition is not maintainable since the petitioner had already filed an appeal before the VAT Tribunal, the Court acknowledged the delays in the Tribunal's proceedings due to the absence of the regular Chairman. Given the circumstances, the Court directed the petitioner to withdraw the appeal pending before the VAT Tribunal and proceed with the review petition. The Court allowed the writ petition, setting aside the 3rd respondent's endorsement and directing the 2nd respondent to consider the review petition filed by the petitioner, providing a personal hearing and issuing appropriate orders expeditiously within eight weeks from the date of the order.