TaxTMI 
TaxTMI 
2020 (8) TMI 690
X X X X Extracts X X X X
X X X X Extracts X X X X
....disposed of by this common order. 2. Petitioner is an organization in the co-operative sector with a net membership of around 552 co-operative societies across the State of Telangana. It was nominated as the Nodal Agency for procurement, maintenance of buffer-stocks and distribution of Fertilizers to market the same at MRP in the State of Telangana. It also supplies quality seeds to the farmers under various subsidy schemes provided by the Government of India as well as by the Government of Telangana. It also provides storage and custom services to the farmers through its go-downs and it has also setup Agri based units to get value addition for the produce of the farmers and to generate rural employment and produce "Nandi Brand" cattle f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the 4th respondent, but the petitioner though obligated to deposit 12.5% of the disputed tax as per proviso (2) of Section 31(1) of the Act, did not do so on the ground that already 50% of the earlier disputed tax had been deposited by it before the Tribunal in the earlier round of litigation. 11. The 4th respondent rejected the appeal vide. ADC order No.445 dt.29.02.2020 on the ground that the petitioner, when it filed the appeal before him, is required to furnish proof of payment of prescribed amount as per the proviso (1) to Section 31(1) of the Act, but in the papers filed along with the appeal by the petitioner on 03.10.2019, petitioner had failed to furnish proof of payment of 12.5% of the difference of tax assessed by the authorit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r cannot be admitted. The 4th respondent thus dismissed the appeal. 14. Assailing the same, WP.No.12015 of 2020 has been field by the petitioner. WP.No.12009 of 2020 15. After the order was passed by the 1st respondent on 03.09.2019 disallowing the input tax credit of Rs. 1,62,90,794/-, a notice in Form VAT 203A was issued on 06.09.2019 to the petitioner by the 1st respondent proposing to levy penalty of Rs. 40,72,699/-. In the said notice, the said penalty is proposed to be levied under Section 53(1)(2) of the Act, which was 25% of the under-declaration of tax of Rs. 1,62,90,794/-. 16. Objections to the same were filed by the petitioner on 14.09.2019 and its Chartered Accountant also appeared for personal hearing on 25.09.2019.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... note of the net credit carried forward amount of Rs. 12,75,51,300/- and ought to have adjusted the 12.5% of the disputed tax, amounting to Rs. 20,36,350/-; and d) the petitioner therefore need not have to deposit the 12.5% of the disputed tax while filing the appeal before the 4th respondent. Consideration by the Court RE: WP.No.12015 of 2020 21. But the petitioner itself does not dispute that the 50% of the pre-deposit made by the petitioner at the time of filing of the appeal before the Tribunal was adjusted by the 1st respondent at the time when the reassessment order dt.03.09.2019 was passed and after giving such credit to the pre-deposit already made, the tax liability of the petitioner had been reduced from Rs. 1,62,90....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted above, the Act requires a pre-deposit as per the language in the proviso(2) of sub-Section (1) of Section 31 of the Act and does not permit any adjustments. 29. No authority is cited by the petitioner in support of petitioner's contention that adjustment of any net credit of tax is required to be made by the appellate authority while considering any appeal filed under Section 35 of the Act. 30. Therefore, we do not find any merit in WP.No.12015 of 2020 and it is accordingly dismissed. Contentions of the petitioner in WP.No.12009 of 2020 31. Coming to WP.No.12009 of 2020, where the petitioner has assailed the assessment order No.43687 dt.25.09.2019 levying penalty of Rs. 40,72,699/- on the petitioner as a consequence to the r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed, and the penalty order passed by the 1st respondent on 25.09.2019 in AO.No.43687 should also should be set aside. Contentions of the Sri J.Anil Kumar in WP.No.12009 of 2020 36. Sri J.Anil Kumar, Special Counsel for Commercial Taxes appearing for respondents states that petitioner had not filed an appeal under Section 31 of the Act against the assessment order No.43687 dt.25.09.2019 till date; and that the omission of the 1st proviso to Section 31(1) of the Act or challenge to such omission does not help the petitioner in any manner, because as of date more than 60 days from the date of the said order has already elapsed. 37. According to him, even if the Writ Petition is allowed and the omission of the 1st proviso to Section 31(....