MPL Cement and Sponge Private Limited vs Commercial Tax Officer and Another

G. Rohini, J.—The petitioner is a registered dealer under the A.P. Value Added Tax Act, 2005 (for short ''the VAT Act'') on the rolls of the 2nd respondent. Alleging that the petitioner failed to file the return in Form Ml under the provisions of A.P. Tax on Entry of Motor Vehicles into Local Areas Act, 1996 (for short ''the Entry Tax Act'') with regard to JCB purchased by it during the month of June, 2011 from JCB India Limited, Haryana State for the purpose of its business, the respondent No. 1 issued a show cause notice calling upon petitioner to submit its objections, if any, for the turnovers proposed therein. It appears that the petitioner in his response stated that it had no objection to the tax proposed to be levied. Accordingly, a final order dated 30.01.2013 was passed by the 1st respondent determining that the petitioner is liable to pay the tax of Rs. 2,63,893/-. It is stated that the petitioner preferred an appeal against the said order and the same is pending before the Appellate Deputy Commissioner.

Subsequently, the petitioner was served with the notice dated 6.2.2013 in Form VAT 203A proposing to levy penalty of Rs. 2,63,893/- i.e., at 100% on tax of Rs. 2,63,893/- which was allegedly due u/s 53(3) of the A.P. VAT Act, 2005. The said notice is followed by the demand in Form VAT 203, dated 8.3.2013. Aggrieved by the same, the present writ petition is filed.

It is primarily contended by the learned counsel for the writ petitioner that the impugned penalty order is illegal and in violation of the principles of natural justice since the petitioner was not given an opportunity to raise its objections against the penalty so imposed since the show cause notice in Form 203-A as well as the impugned demand in Form VAT 203 were served on the petitioner on the same day on 18.04.2013. It is also contended that the 1st respondent has no jurisdiction to levy the impugned penalty since no separate notification was issued after the enactment of A.P. VAT Act to make the assessment under the Entry Tax Act.

We have also heard Sri P. Balaji Varma, the learned Special Standing Counsel for Commercial Taxes, who has fairly conceded that the 1st respondent could not have invoked the provisions of the VAT Act. The learned counsel has also not disputed the allegation that both the show cause notice and the impugned penalty order were served on the petitioner on the same day.

Having regard to the admitted facts noticed above, the impugned penalty order being illegal is hereby set aside and the Writ Petition is allowed. No costs. Consequently, Miscellaneous Petitions, if any, pending in this writ petition shall stand closed.