TaxTMI 
TaxTMI 
2011 (8) TMI 1020
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....e respondent which was valid from November, 2002 and the same was surrendered to the respondent in April, 2005 as it had completed its works awarded by its principal contractor in the State of Andhra Pradesh. The petitioner-company commenced its works in Andhra Pradesh from the year 2002-03 and the final assessment thereof was completed by the respondent by order dated February 20, 2006 determining the gross and net turnovers as Rs. 4,05,87,600. Challenging the same, the petitioner-company preferred an appeal before the appellate authority, viz., the Appellate Deputy Commissioner (CT), Visakhapatnam Division. The appellate authority by its order dated July 17, 2006 while allowing the appeal of the petitioner-company directed the respondent to assess the petitioner-company under rule 6(3)(i) of the Andhra Pradesh General Sales Tax Rules (for short, "the Rules") as the works said to have been executed by it were spread over a period of more than one year. Basing on the said order passed by the appellate authority, the respondent passed the consequential order dated April 10, 2007, whereby the petitioner-company was demanded to pay the balance tax of Rs. 41,858 for the assessment ye....
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...., 2008, by registered post with acknowledgement due to the registered office of the petitioner-company at Kolhapur, Maharashtra, on December 27, 2010. The said revised assessment order was appeared to have been passed by the respondent based on the objections raised by. the Accountant-General (Audit), who opined that light diesel oil (LDO) purchased from M/s. Indian Oil Corporation Limited by the petitioner-company was, an item ineligible to be purchased against G forms under G. O. Ms. No. 200 dated April 18, 2002 whereunder the difference tax of 17.33 per cent was sought to be recovered from the petitioner-company who was the buyer though under the scheme of the 1957 Act the liability is on the seller. Aggrieved by the order dated July 24, 2008 of the respondent, the present writ petition is filed. The respondent filed a counter-affidavit stating that the petitioner-company has got an efficacious alternative remedy of appeal under the provision of the Andhra Pradesh Value Added Tax Act, 2005 and without taking recourse thereto it approached this court straightaway and that as the extraordinary jurisdiction of this court under article 226 of the Constitution is not meant to short-....
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....though the impugned order is an appealable order but in view of the fact that the same is challenged on the grounds of without jurisdiction and barred by limitation, the question of relegating the petitioner to appellate remedy does not arise. It is also stated that the impugned order being a consequential order having been passed pursuant to the order passed by the appellate authority, the initial assessment order dated February 20, 2006 got itself merged into the appellate order and therefore the question of revising the initial assessment order suo motu does not arise and that the opinion of audit party does not constitute fresh material dehors the record. It is further stated that G2 registration certificate was issued to the petitioner-company on November 30, 2002 which includes LDO as one of the eligible commodities much after issuance of G. O. Ms. No. 200 dated April 18, 2002 but the said certificate was neither amended nor cancelled so as to give effect to the said G. O. and therefore the said certificate cannot be found fault with. As to the averment of the respondent that show-cause notice dated July 15, 2008 was sent by ordinary post on August 26, 2009 to the petitioner,....
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....that as soon as the respondent came to know the exact address of the petitioner-company pursuant to the filing of its two writ petitions before this court in W. P. Nos. 12171 and 12238 of 2010, a copy of the impugned order was communicated to the petitioner-company by registered post with acknowledgement due on December 27, 2010 and thus the service of the same was well within the period of limitation. He therefore contended that the impugned order does not warrant interference by this court and accordingly prayed that the writ appeal be dismissed. We have gone through the impugned order and the other material placed on record. Admittedly, in the first instance the assessment order was passed on February 20, 2006 which was served upon the petitioner-company on March 20, 2006 by the respondent. Aggrieved thereby, the petitioner-company preferred an appeal before the appellate authority and by its order dated July 17, 2006 the said appeal was allowed. Pursuant thereto, the respondent passed the consequential order dated April 10, 2007. It is therefore dear that the earlier assessment order dated February 20, 2006 itself got merged into the appellate order dated July 17, 2006. Therea....
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....ger or agent; (b) if such dealer or his manager or his agent is not found, by leaving it at his last known place of business or residence or by giving or tendering it to adult member of his family; or (c) if the address of such dealer is known to the assessing authority; by sending it to him, by registered post, and if it is returned un-served, it shall be put in notice board of the office of the assessing authority or the notice board in the office of the local chamber of commerce or traders' association, and it shall be deemed that the said notice or summons or proceedings are served on the dealer and action shall be taken in pursuance thereof accordingly; or (d) if any or all of the modes aforesaid is not practicable, by affixing it in some conspicuous place at his last known place of business or residence." From a reading of the above provision, it is manifest that the so-called service of the alleged show-cause notice dated July 15, 2008 and the consequential revised assessment order dated July 24, 2008 by the respondent to the petitioner-com....
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....ion is not whether there was lack of diligence but whether there was lack of material at the time of assessment that necessitated exercise of the power. If necessary material was available on record but the assessing authorities had not adverted to relevant aspect due to lack of diligence, it would riot afford a ground to the assessing authority or his successor to exercise power under section 14(4), but if the record did not contain the relevant material which comes to the notice of the authority from other sources after the assessment then it would afford a justifiable ground to exercise power under that section. In other words, for the exercise of power under section 14(4), reliance should be made not on the material on record but on. the material de hors the record which came to the notice of the assessing authority subsequent to the assessment. In short, non-application of mind by the assessing authority to the material on record at the time of assessment, is not a justifiable ground to invoke power under section 14(4) of the Act. The same view is taken by a Division Bench of this court in State of Andhra Pradesh v. Kedia Vanaspati (P) Ltd. [1994] 95 STC 208 (AP) to which one ....