Sri Durga Granites vs. The Deputy Assistant Commissioner

The Deputy Assistant Commissioner, Commissioner (ST) - IV, Madanapalle Circle, Madanapalle, behind Mamatha Kalyana Mandapam, Madanapalle, Chittoor District, A.P.

The Assistant Commissioner, (ST), Chittoor-I Circle, Next to Devi Iheatre, Opp. to Bhagya Lakshmi Motors, Tirupathi Road, Kattamanchali, Chittoor, Chittoor District, A.P.

The State of Andhra Pradesh, rep. by its Principal Secretary to the Government, Revenue (ST) Department, A.P. Secretariat Buildings Velagapudi, Guntur District, A.P. ...Petitioners/Respondents No.1,2 & 3 AND 3

The Assistant Commissioner (ST), Chittoor-ll Circle, Next to Devi Theatre, Opp to Bhagya Lakshmi Motors, Tirupathi Road Kattamanchali, Chittoor, Chittoor District, A.P

The State of Andhra Pradesh, rep. by its Principal Secretary to the Ve7ag“GuX"Dfstric?A.?^"^^ N7rth''S°o"ck°n7K ...Respondents Petition under Article 226 of the Constitution of India the circumstances stated in the affidavit filed therewith, the High Court be pleased to issue an appropriate Writ, Order or Direction, particularly in the nature of MANDAMUS, praying that in may more declaring that the impugned cum Penalty cum Interest Order passed by the First Respondent vide GSTN 37BUVPB9970J1ZQ, dated 07-02-2020, tor the Tax Period July, 2017, to March, 2019 under ExParte Assessment the IGST Act, 2017, even though she is not the proper officer' and on mere assumptions and presumptions. without any enquiry, and without supplying copies of materials relied upon, and without giving sufficient time for filing objections/reply and without giving opportunity of personal hearing, as arbitrary, capricious, without juri iction. Violative of the principles of natural justice contrary to law and illegal and consequently set aside the same. lA NO: 1 OF 9090 Petition under Section 151 CPC stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings pursuant to the impugned Order passed by the First Respondent vide 37BUVPB9970J1ZQ, dated 07- 02-2020, for the Tax Period July, 2017, to March, 2019 under the IGST Act, 2017, pending disposal of the above Writ Petition. jA NO: 1 OF 209-^ praying that in the circumstances Petition under Section 151 CPC stated in the affidavit filed in praying that in the circumstances support of the petition, the High Court may be •% 5 > pleased to permit the Petitioner to raise additional ground by receiving the present Additional Affidavit. Counsel for the Petitioner: SRI G NARENDRA CHETTY Counsel for the Respondents: GP FOR COMMERCIAL TAX WRIT PETITION NO: 3974 OF 2021 Between: M/s. NHP Granite, 3-214/1, Pagadaman Street, Greamspet Post, Chittoor, Chittoor District, 517002, A.P., rep. by its Proprietor, N Hari Prasad. ...Petitioner AND 1. The Deputy Assistant Commissioner, (ST)-II, Puttur Circle, By-Pass Road, Puttur, Chittoor District, A.P.

The Deputy Assistant Commissioner (ST) I, Tirupathi-I Circle, C.T. Complex, Air By-Pass Road, Tirupathi 517501, Chittoor District, A.P.

The Assistant Commissioner (ST), Puttur Circle, By-Pass Road Puttur Chittoor District, A.P.

The State of Andhra Pradesh, rep. by the Principal Secretary to the Government, Revenue (CT) Department, A.P. Secretariat Buildings Velagapudi, Guntur District, A.P.

The Union of India, rep. by its Secretary (Finance), Ministry of Finance North Block, New Delhi 110001. ...Respondents 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 to issue an appropriate Writ, Order or Direction particularly in the nature of MANDAMUS declaring that the impugned Ex- Parte Common Assessment First Respondent vide GSTIN 37AEKPH5635J1Z7, dated 09-01-2020, for the Tax Periods June, 2017 to September, 2019, under the I.G.S.T. more cum penalty cum interest Order passed by the 6 # • C.G.S.T., and S.G.S.T. Acts, 2017, even though he is not the proper officer and when there is also no separate post-audit authorization given to him by the Joint Commissioner (ST), Chittoor, as without juri iction, violative of the principles of natural justice, arbitrary, capricious, contrary to law and on merits illegal and not sustainable and consequently set aside the even same. lA NO: 1 OF 2021 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 to grant stay of all further proceedings, including collection of the disputed tax. Penalty and Interest Common Assessment pursuant to the impugned Ex-Parte cum Penalty cum Interest Order vide GSTIN 37AEKPH5635J1Z7, dated 09-01-2020, passed by the First Respondent under the I.G.S.T., C.G.S.T. and S.G.S.T. Acts, 2017, for the Tax Periods June, 2017 to September, 2019, pending disposal of the above Writ Petition. lA NO: 1 OF 202.? 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 to permit the Petitioner to raise additional ground by receiving the present Additional Affidavit. Counsel for the Petitioner: SRI G.NARENDRA CHETTY Counsel for the Respondents: GP FOR COMMERCIAL TAX WRIT PETITION NO: 4419 OF 2021 ^ Between: M/s. Mahalakshmi Granites, D. no. 3-214/1, Pagadaman Street Creams pet Post, Chittoor - 514002, Chittoor District, A.P., rep by its Proprietor, N. Ganeshan - h ut. ...Petitioner AND 7

Heard Sri G. Narendra Chetty, learned counsel for the petitioners and the Learned Government Pleader for Commercial Tax for the respondents.

In all these cases the petitioners, who are dealers in Granites products, had suffered Orders of assessment which are now challenged before this Court. The details of the Assessment Orders are given below:- S.N Writ Petition Date of Assessment Order Name of the Authority passed by the Impugned Assessment Order The Deputy Assistant Commissioner (ST)- IV, Madanapalle Circle, Madanapalle Chittoor District A.P. The Deputy Assistant Commissioner (ST)- ill, Chittoor-I Circle, Chittoor District, A.P. The Deputy Assistant Commissioner (ST)- II, Puttur Circle, Chittoor District, A.P. The Deputy Assistant Commissioner (ST)- III, Chittoor-I Circle, Chittoor District, A.P. No. o. 1. 3480 of 2020 08.01.2020 2. 6504 of 2020 07.02.2020 3. 3974 of 2021 09.01.2020 4. 4419 of 2021 Nil (IGST Order NO.ZH3709200D95557)

The main contention raised by the learned counsel for the petitioners, is that a preliminary notice under Rule-142(1 )(A) of the Central Goods and Services Tax Rules, 2017 [for short “the COST Rules”] would have to be issued before a proper show-cause notice and subsequent Order of assessment can be issued. He would contend that the said requirement is a mandatory requirement and any failure to adhere to such a requirement would render the Orders of assessment invalid.

It is the admitted case, on both sides, that such notices under Rule-142(1 )(A) of the COST Rules have not been issued to the petitioners, prior to the Orders of assessment.

Rule-142(1 )(A) of the COST Rules, was amended with effect from 15.10.2020. Prior to the amendment, the Rules stated that a notice under Rule-142(1)(A) of the COST Rules “shall” be issued as a preliminary step for conduct of a assessment proceeding. The word “shall” was replaced with a word “may” by virtue of the amendment. A Division Bench of this Court by Judgment, dated 13.10.2023, in W.P.No. 12850 of 2022, in the case of M/s. New Morning Star Travels Vs. The Deputy Commissioner (ST), Vijayawada, after considering the said issue, had held that non issuance of Rule-142(1 )(A) of the COST Rules, for the period prior to the amendment, would render the Orders of assessment is invalid.

As all the assessments are prior to the amendment, the ratio of the Judgment of the Division Bench, mentioned above, would squarely apply to these cases.

Accordingly, these Writ Petitions are allowed setting aside the assessment orders, under challenge, as mentioned in the above table, and the matters are remanded back to. the concerned assessing officers for appropriate consideration and for passing Orders after issuance of notice under Rule-142(1 )(A) of the COST Rules, to the petitioners. There shall be no 9. order as to costs.

Two CCs to GP for Commercial Tax, High Court of Andhra Pradesh. [OUT]

Two CD Copies RAM