Nipun Constructions vs. Deputy Assistant Commissioner

NIPUN CONSTRUCTIONS, REP. BY ITS PARTNER, MR. K. SRINIVASU, 1-26-3765, NALLAJERLA ROAD, TADEPALLIGUDEM- 534 101, WEST GODAVARI DISTRICT.

APPELLATE AUTHORITY AND ADDITIONAL COMMISSIONER ST, VIJAYAWADA.

STATE OF ANDHRA PRADESH, REP. BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (CT) DEPARTMENT, SECRETARIAT, VELAGAPUDI, AMARAVATI, GUNTUR DISTRICT.

UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF FINANCE, 3RD FLOOR, JEEVAN DEEP BUILDING, SANSADMARG, NEW DELHI-110 001. ...RESPONDENT(S): Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased topleased to issue a Writ of Mandamus or any other appropriate writ or order or direction setting aside the impugned order of the 2nd Respondent in Order No.ZD370425001405R, dated 2.4.2025 for the tax period 2022-23 under the Central Goods and Services Tax Act, 2017 and Andhra Pradesh State Goods and Services Tax Act, 2017 as illegal, contrary to law and pass IA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to grant stay of all further proceedings including stay of collection of disputed tax, interest and penalty pursuant to the order of the 2nd Respondent, dated 2.4.2025 for the tax period 2022-23 under the Central Goods and Services Tax Act, 2017 and Andhra Pradesh State Goods and Services Tax Act, 2017, pending disposal of the Writ Petition as otherwise the Petitioner will be put to severe loss and hardship. IA NO: 2 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to issue a Writ of Mandamus or any other appropriate writ or order or direction to a setting aside the impugned order of the 2nd Respondent in Order NO ZD370425001405R, dated 2 4 2025 and order of the 1st Respondent, dated 4 11 2024 for the tax period 202223 on the ground that it is in violation of principles of natural justice under the Central Goods and Services Tax Act, 2017 and Andhra Pradesh State Goods and Services Tax Act, 2017 as illegal, contrary to law and b setaside the Form GST DRC13 dated 28 4 2025 for the tax period 202223 issued by the 1 Respondent to the Branch Manager, ICICI Bank, Tadepalligudem, West Godavari District under Section 791 c of the GST Act and pass IA NO: 3 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to suspend the proceedings pursuant to Form GST DRC 13 dated 28 4 2025 for the tax period 202223 issued by the 1st Respondent to the Branch Manager, ICICI Bank, Tadepalligudem, West Godavari District under Section 791 c of the GST Act, 2017 pending disposal of the Writ Petition as otherwise the Petitioner will be put to severe loss and hardship Counsel for the Petitioner:

Learned counsel for the petitioner, upon a query from this Court as to how a Writ Petition would be maintainable against the Original Order, when the petitioner had already availed an alternative remedy of an Appeal, relied upon a judgment of a Division Bench of this Court in the case of Kali Shankar Enterprises Vs. Additional Commissioner & Ors, in W.P.No.31675 of 2023. In this judgment, a Division Bench of this Court, had held that, when both the Assessment Order and the Appellate Order are challenged, it would also be open to this Court to consider the challenge to the assessment order, even where the Appellate Order is in accordance with law. In those circumstances, this Court would now have to consider the order of assessment, on merits.

The primary contention of the learned counsel for the petitioner is that, the orders suffers from violation of Principles of Natural Justice in as much as the objections raised by the petitioner had not been considered by the 1st respondent, while passing an order of assessment.

Learned counsel for the petitioner also contends that, the 1st respondent, having received the objections, sent in reply to the FORM GST DRC – 01A Notice, had rejected the same, on the ground that, detailed objections have not been made. It is further contended that, the objections raised by the petitioner, would have to be considered and an order, with reasons, accepting or rejecting the said objections should have been passed and the rejection of the objections, without considering them is violative of Principles of Natural Justice.

A perusal of the objections would show that, these objections do not contain any details as to the claim made in the objections. The petitioner has filed the objections placed before the 1st respondent. The objections raised by the petitioner were that the proposed rate of tax at 12% on the turnover of the petitioner was not permissible as more than 75% of the turnover of the petitioner was earth works related and the G.S.T could have been levied only @ 5% and the petitioner had also contended that the turnover of the petitioner to an extent of Rs.20,77,075/- pertains to the period when the A.P.V.A.T. Act was applicable and such amounts could not be taxed under the G.S.T. Act.

The petitioner claims that documents relating to earth work, conducted by the petitioner, have also been uploaded with the Form. However, the Assessing Authority holds that, such documents were not available.

The 1st respondent had rejected these grounds, on the ground that, there was no supporting material and that the specifics of the turnover relevant to V.A.T. Act or specifics relating to the earth work had not been placed before the 1st respondent Authority.

In view of the aforesaid facts, there is some ambiguity as to whether the petitioner had filed supporting documents before the Assessing Authority or not, in support of its contentions mentioned above.

In such circumstances, it would only be appropriate to err on the side of the assessee.

Accordingly, this Writ Petition is disposed of, setting aside the order of assessment, dated 04.11.2024 and remanding the matter back to the 1st respondent to pass fresh orders, after giving an opportunity of hearing to the petitioner, including an opportunity to place relevant material before the 1st respondent.

Needless to say, the period from the date of the impugned Order, till the date of receipt of this Order shall be excluded for the purposes of limitation.

2025