Sri Bhagya Lakshmi Cashew Products vs Deputy Commercial Tax Officer, Ichapuram, Srikakulam Dist.

Syed Shah Mohammed Quadri, J.—The petitioner, a dealer registered under the Andhra Pradesh General Sales Tax Act, 1957 (for short, "the Act") questions the validity of the provisional order of assessment and demand notice and also demand in form XIII with regard to recovery of penalty as not merely being illegal and arbitrary but also void as no notice was issued before passing the provisional assessment order or imposing penalty.

When the writ petition came up for admission on June 21, 1996, the learned Special Government Pleader took time for obtaining instructions as to whether the provisional assessment order was served and whether show cause notice was issued before levying penalty. Today the learned Government Pleader represents that though the provisional order of assessment was served on the petitioner, yet, he concedes that before passing the provisional order of assessment, notice as contemplated under rule 12, read with rule 17(3) of the Andhra Pradesh General Sales Tax Rules, 1957 (for short, "the Rules") has not been served.

Inasmuch as rule 17(3) read with rule 12 of the Rules contemplates issuing of notice and giving an opportunity to the dealer before passing provisional order of assessment and also having regard to the provisions of levy of penalty and also the fact that penalty ought to have been imposed only after notice, we are unable to sustain the impugned demand notices. They are accordingly set aside. The writ petition is allowed accordingly. We hasten to add that this order does not preclude the authority from passing fresh orders of assessment in accordance with law. No costs.

Writ petition allowed.