TaxTMI 
TaxTMI 
2019 (8) TMI 566
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....s for construction, prepare lay outs, provide necessary amenities and construct and sell houses after obtaining necessary sanctions. It is the claim of the petitioner that for the purpose of rising funds, they sell some semi-finished buildings with a precondition that the task of developing and constructing should be entrusted only to the petitioner for Group Housing. 4. The petitioner was issued with a show-cause notice in Form VAT 305A, dated 20.06.2013, proposing to levy tax in terms of Section 4 (7) (e) and indicating that composition under Section 4 (7) (d) of the Act will not be allowed. The petitioner filed their objections on 15.07.2013. The objections were overruled and an order of assessment confirming the proposal was passed on 13.08.2013. 5. As against the order of assessment, the petitioner filed an appeal to the 3rd respondent. The appeal was rejected by an order, dated 26.06.2014 on the ground that the petitioner had not complied with the statutory pre-condition stipulated under Section 31. It appears that the petitioner paid 12.5% of the disputed demand, which is a pre-condition, after a delay of 11 days and 15 days. Therefore, the appeal was rejected. 6. Cont....
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....relating to interior/additional works; that therefore a showcause notice was issued and after considering objections, the impugned order was passed; that as against the impugned order of assessment, the petitioner filed a statutory appeal to the 3rd respondent on 11.10.2013 with a delay of 27 days; that while filing the appeal the petitioner did not even pay the prescribed fees and the mandatory pre-deposit as prescribed in Section 31; that therefore a show-cause notice was issued on 28.11.2013 to the Authorized Representative of the petitioner calling upon him to remove the discrepancies; that the Authorized Representative did not take steps forcing the Appellate Authority to issue a second notice, dated 16.01.2014 proposing to dismiss the appeal for failure to remove the defects; that in response to the second notice, the Authorized Representative sent a reply dated 27.01.2014 informing the Appellate Authority that pre-deposit and the appeal fees were paid respectively on 24.10.2013 and 29.10.2013; that upon finding that the payments were made beyond the time stipulated in the Act, an opportunity of hearing was granted; that the Authorized Representative appeared before the 3rd r....
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....t took place up to the date of issue of the Memo dated 17.06.2011; that therefore the petitioner may be liable to pay tax only at 1% at least till 17.06.2011, in terms of Section 4 (7) (d) of the Act; and that through a counter affidavit, the respondent cannot improve the impugned order of assessment. 10. We have carefully considered the above submissions. 11. At the outset, the writ petition is liable to be thrown out on the ground of delay and laches. The order of assessment challenged in the writ petition is dated 13.08.2013. The writ petition was filed on 11.04.2018. The petitioner has had knowledge of the order of assessment, as they seem to have filed an appeal under Section 31, with a delay of 27 days. Apart from the delay, there were also deficiencies in the presentation of the appeal, as the appeal fee was not paid and predeposit condition was not satisfied. Notices were issued by the Appellate Authority and the Authorized Representative confirmed having paid the prescribed fee and the pre-deposit condition after the expiry period of limitation. The Authorized Representative was heard in person and thereafter the order of dismissal of the appeal was passed on 26.06.201....
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.... argument revolving around the omission of Section 4 (7) (c) of the Act has to be rejected. 16. Reliance is placed by the learned counsel for the petitioner on the Government Memo dated 17.06.2011, pursuant to which the Commissioner of Commercial Tax issued a circular dated 22.03.2012. Under the Government Memo dated 17.06.2011, the Government permitted those apartment builders who had not registered and not opted for composition under Section 4 (7) (d), to register themselves as Dealers and pay tax at 1% under composition scheme. The relevant portion of the Government memo dated 17.06.2011 reads as follows: "3. Government, after careful examination, hereby order and permit those apartment builders, who have not registered and not opted for composition of tax under section 4 (7) (d) under APVAT Act, 2005 to register themselves as VAT dealers and pay tax @ 1% under composition scheme. They should also pay interest, as applicable under the APVAT Act, from the due date till actual payment of the VAT due." 17. The Commissioner of Commercial Tax issued a circular dated 22.03.2012 in pursuance of the Government Memo. The operative portion of the circular reads as follows: "1. I....
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....lause on the turnover relating to the amount received as a sub-contractor from such main contractor towards the execution of works contract, whether wholly or partly, subject to the production of evidence to prove that such main contractor has exercised such option in respect of the specific work and subject to such other conditions as may be prescribed." 20. It may be seen from the provision extracted above that the same is applicable to "Dealers". The word "Dealer" is defined in Section 2 (10) of the Act to mean any person who carries on or executes any works contract. But, the entitlement of a Dealer to the benefit of composition under Section 4 (7) (d) of the Act, as seen from provisions, is "subject to such conditions as may be prescribed". The Government has framed a set of Rules known as Telangana Value Added Tax Rules, 2005 in exercise of powers conferred by the Section 78 of the Act. Rule 17.4 of these Rules deals with the manner in which apartment builders and developers under composition are to be treated. Under Rule 17.4 (b), the VAT Dealer should notify the Prescribed Authority in Form VAT 250, of his intention to avail composition for all works specified in clause (....