M/S. Harsha Traders vs. The Appellate Deputy Commissioner
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HON’BLE SRI JUSTICE C. PRAVEEN KUMAR & HON’BLE SRI JUSTICE B. KRISHNA MOHAN
W.P. No. 18301 of 2020
O R D E R:- (Per Hon’ble Sri Justice C.Praveen Kumar)
This writ petition is filed for the following substantive relief: “….to issue a Writ of Mandamus declaring the impugned Appeal Rejection Order of the 1st respondent vide ADC Common Order No.4951, dated 23.01.2020 insofar as it relates to the petitioner’s Appeal S.No.125/2017-18, which was passed on the same day as the Check Memo was served on the petitioner before the time granted in the Check Memo for rectification of the Omission has expired, as arbitrary and violative of the principles of natural justice and consequently set aside the same.”
The brief facts of the case are that the petitioner – M/s.Harsha Traders, a registered dealer under the A.P.Value Added Tax Act, 2005 on the rolls of the 2nd respondent, is doing business of trading in cement and petroleum products. The 2nd respondent passed the Assessment Order for the tax periods 2014-2015 and 2015-2016 vide AAO No.66789, dated 08.05.2017 denying input tax credit on cement, on the ground of non-filing of Purchase Tax Invoices. Being aggrieved by the same, the petitioner preferred a statutory appeal before the 1st respondent who issued a Check Memo dated 27.12.2019 stating that there is a delay of 27 days in filing the appeal. The Check Memo was received by the petitioner on 23.01.2020. The Check Memo also states that 15 days’ time WP._18301_2020
2 was being given to explain the delay, failing which, the appeal will not be registered/admitted.
The petitioner’s grievance is that though the Check Memo was served on 23.01.2020, and 15 days’ time was granted to explain the reasons for the delay in filing the appeal, but without waiting till the expiry of the stipulated time, the impugned ADC Order No.4951 came to be passed on 23.01.2020 itself, rejecting the admission of the appeal. Challenging the same, the present writ petition is filed.
The same is opposed by the learned Government Pleader for Commercial Taxes.
A perusal of the material on record makes it clear that the Check Memo dated 27.12.2019 issued by the 1st respondent – Appellate Deputy Commissioner was served on the petitioner on 23.01.2020, giving 15 days’ time to the petitioner to explain the delay or / to rectify the shortfalls in the appeal. But, without waiting till the expiry of the time granted for explaining the delay, the first respondent passed the impugned order on the very same day itself i.e. on 23.01.2020. As such, the order under challenge is liable to be set aside as the same suffers from violation of principles of natural justice.
Hence, the writ petition is allowed setting aside the impugned ADC Common Order No.4951, dated 23.01.2020 and WP._18301_2020
3 the matter is remanded back to the 1st respondent – Appellate Deputy Commissioner, directing the petitioner to submit explanation within 15 days from 01.12.2020 to the objections raised in the Check Memo, and thereafter, the authority concerned shall pass orders in accordance with law. No order as to costs.
As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous. ____________________
C. PRAVEEN KUMAR, J 17.11.2020
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B. KRISHNA MOHAN, J bcj
Reproduced from the public record of the Andhra Pradesh High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.