2005 (11) TMI 454

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....957 and hence void and inoperative, (2) to set aside the notice of provisional monthly assessment and demand vide G. I. No. 15310 of 2003-04 dated June 30, 2004 issued for the assessment year 2003-04 and accordingly to interdict the second respondent from proceeding further in pursuance of the show cause notice dated June 28, 2004 for the assessment year 2003-04. In order to consider as to whether the petitioner is entitled for grant of any relief as prayed for, a few relevant facts leading to filing of the writ petition may have to be noticed. The Government of Andhra Pradesh in exercise of its power under section 9 of the Andhra Pradesh General Sales Tax Act, 1957 (for short, "the Act") issued notification in G. O. Ms. No. 1091....

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.... issued by the Government of Andhra Pradesh in exercise of the powers conferred by sub-section (1) of section 9 of the Act continues to be in operation. The fact remains that fresh milk continues to enjoy the benefit of exemption from the tax payable under the said Act. There is also no dispute whatsoever that the decisions referred to hereinabove, wherein this court took the view that the skimmed milk powder is nothing but milk, attained finality. Therefore, there is no option but to hold that the skimmed milk powder is also exempted from the payment of sales tax under the provisions of the Act. The view taken by this court that skimmed milk powder must be regarded as milk in its dehydrated form has become final. The clarification issued b....

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....ly unsustainable since the same is in the teeth of the judgments of this court referred to hereinabove. In the circumstances, the impugned proceedings dated June 9, 2004 on the file of the Commissioner of Commercial Taxes are quashed. Consequently, the notice of provisional monthly assessment and demand dated June 30, 2004 to the extent of imposing or proposing to impose tax on the skimmed milk powder is declared illegal and ultra vires. The petitioner is entitled for the said relief. The writ petition is accordingly allowed with costs qualified at Rs. 2,000. APPENDIX [The judgment of division Bench of the Andhra Pradesh High Court consisting of S. V. Maruthi and T. N. C. Rangarajan, JJ. in More Agencies v. State of A. P. (Tax Revision ....