TaxTMI 
TaxTMI 
TaxTMI 
2021 (11) TMI 110
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..../Years 2005-06 to 2008-09, 2009-10 and 2010-11, whereunder a sum of Rs. 1,88,81,000/-, Rs. 2,38,84,000/- and Rs. 2,21,83,854/- is being claimed by the respondents as tax due and payable by the petitioner, respectively. 3. It is the case of the petitioner that none of the assessment orders by which the respondents are claiming the above said amounts as due and payable by the petitioner company are served to enable it to examine the correctness of assessment orders passed as to whether the said orders are in conformity with the provisions of the VAT Act and also avail remedies under the statute or otherwise. 4. The petitioner contends that on the 2nd respondent issuing notice dt. 03.02.2012 in Form V under the RR Act invoking the provisions of Section 27 of Telangana VAT Act for non-payment of arrears of tax in a sum of Rs. 5,59,58,758/- and attaching various properties of the petitioner, the petitioner brought to the notice of the authorities that the arrears as reflected in Form V are erroneous and requested to eliminate the said demand, since the assessment orders for the year 2001-02 and 2003-04 were revised on 24.04.2005 resulting in excess tax collection and requested that th....
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....rm VAT 305A on 06.06.2009 proposing to raise a demand of Rs. 1,86,80,708/- and called upon the petitioner to file its objections thereto; that, as the petitioner did not file objections till 06.07.2009, the assessment orders were passed on 07.07.2009 confirming the tax as proposed in the show cause notice. 10. It is also contended that on the 1st respondent passing the assessment order dt. 07.07.2009, the petitioner challenged the same before the Hon'ble High Court by filing W.P. No.27331 of 2009; that the said Writ Petition was disposed of by the Hon'ble Court on 15.04.2010 permitting the petitioner to file objection to the notice in VAT 305A dated 06.06.2009 within a period of six weeks from the date, on condition of the petitioner depositing Rs. 20 lakhs within a period of four weeks from 15.04.2010; that the petitioner did not deposit the amount within the period specified nor filed its objections to the show cause notice, as directed by this Court; that as the petitioner did not comply with the orders of this Court, the 1st respondent issued proceedings dt. 31.03.2011 confirming the demand of tax in a sum of Rs. 1,86,80,708/- as arrived at by assessment order dated 07.07.2009....
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....ed this Court by filing a Writ Petition being W.P. No.25943 of 2011 to declare the notification dt. 14.08.2011 issued by the petitioner's banker as illegal and contrary to the provisions of the VAT Act; that in the said Writ Petition, the petitioner was arrayed as 2nd respondent, wherein the respondent department had specifically averred that the assessment orders were served on the 2nd respondent therein (the petitioner herein); that the said assessment orders have attained finality, resulting in the demand of liability getting crystalized; and that the petitioner herein did not object to the above assertion made by the respondent as petitioner therein by choosing to file a counter affidavit denying the service of assessment order. 14. It is further contended by the respondent that in the said Writ Petition, initially interim order was passed permitting the petitioner's banker to proceed with the auction, but the bank was restrained from confirming the sale of the immovable property in favour of the auction purchaser; that the said interim order was subsequently modified on 13.02.2015, wherein this Court permitted the petitioner's banker to proceed with the auction in respect of ....
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.... petitioner company. 18. Upon the respondent filing the above said counter, the petitioner has filed rejoinder thereto denying the averments made in the counter affidavit with regard to the petitioner not complying with the directions issued by this Court in W.P. No.27331 of 2009. Further, petitioner also raised the issue as to the authority of the 1st respondent in passing the revised assessment orders for the period 2005-06 to 2008-09, as the original assessment order was passed by another jurisdictional authority as authorized by the concerned Deputy Commissioner at the relevant point of time. Further, it is also asserted that no assessment orders were served on the petitioner prior to invoking the provisions of RR Act for the recovery and attaching properties of the petitioner. 19. Heard learned counsel for the Petitioner and the learned Spl. Standing Counsel appearing for the Respondents. 20. Having regard to the rival contentions, this Court is required to adjudicate upon as to i) whether the orders of assessment as claimed to have been passed by the respondents are served on the petitioner, and ii) the action of the respondents in resorting to invocation of the provis....
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....idered as validly served under any one of the modes, namely - (i) if the same is personally served on the nominated person; or (ii) it is left at the registered office of the person or person's address for service of notices under the Act; or (iii) it is left at or sent by registered post to any office or place of business of that person in the State; (iv) where it is returned unserved, if it is put on board in the office of local chamber of commerce or traders association. Thus, any notice or order can be considered as validly served on the petitioner, if the respondent affected service by any of the first three methods specified in Rule 64(1)(b) of the Rules. Only in case where the respondent authority chooses to send notice or an order under sub clause (iii) of Rule 64(1)(b) and the same is returned unserved, resort can be had to effect service under sub clause (iv) of Rule 64(1)(b). If the service of any notice or order is caused on a dealer under sub-clause (i) or (ii) of Rule 64(1)(b), in such circumstances there is no necessity to resort to service under sub-clause(iii) and consequently service by affixture on the board of Trade or commerce association as contempl....
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....aim that the orders have been passed and served on the petitioner and the fact that the petitioner did not choose to raise the plea of non service of the said orders in an earlier Writ Petition filed by the department in W.P. No.25943 of 2011, in our considered view, the said contention urged does not hold water, since the challenge in the said Writ Petition filed by the respondent as petitioner was in relation to a notification issued by the petitioner's banker bringing to auction the properties of the petitioner for recovery of loans advanced to it wherein the respondent, as petitioner, sought to claim priority over such assets being a crown debt. The dispute in the said Writ Petition is primarily between the respondent as petitioner and the bank. Thus, the claim of the respondent in the counter affidavit that the petitioner herein did not choose to file a counter affidavit therein raising the said plea would not preclude the petitioner from taking the said plea in the present proceeding. 31. By the counter affidavit though the 1st respondent claims as having served the order of assessment passed for the period 200910 and 2010-11, no material whatsoever has been placed on record....
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.... that the record is not traceable. If the said statement of respondents is to be accepted, it is not clear on what basis the respondents have issued revised notices in Form IV and V on 07.03.2015 as well as notice of attachment in Form V dt. 20.02.2018 under RR Act claiming arrears of tax from the petitioner for the above said period. Mere service of notice under RR Act without being able to show the service of assessment orders passed resulting in crystallization of liability of the petitioner, cannot save the actions of the respondents. As the respondents are not in a position to show as to when the order of assessment for the year 2009-10 and 2010-11 are passed and how the service of the same has been effected on the petitioner, the claim of the petitioner that no such order has been served on it before the respondent resorting to invoke the provisions of Section 27 of VAT Act, appears to be justified. If the said orders are served on the petitioner as being contended, nothing prevented the respondent from issuing certified copies of the said order pursuant to the request made by the petitioner by its letter dated 18.06.2018, just after four months from the date of issue of revi....