(Prayer: 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 declaring that the order of the 2nd respondent dated 12-12-2017 rejecting admission of appeal as arbitrary, illegal, against the provisions of AP VAT Act and also against the principles of natural justice, set aside the same and consequently direct the 2nd respondent to entertain and decide the appeal filed bny the petitioner for the period 01-09-2010 to 31-03-2012 on merits and pass

IA NO: 1 OF 2018

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 grant stay of collection of disputed tax raised for the period 01-09-2010 to 31-03-2012 till the disposal of the above Writ petition and pass

IA NO: 1 OF 2019

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 issue a Writ oaf Mandamus or any other appropriate writ or order or direction declaring that the order of the 2nd respondent dated 12.2.2017 rejecting admission of appeal as arbitrary, illegal, against the provisions of AP VAT act and also against the principles of natural Justice set aside the same and consequently direct the 2nd respondent to entertain and decide the appeal filed by the petitioner for the period 01.09.2010 to 31.03.2012 on merits and to pass)

T.C.D. Sekhar, J.

1. Questioning the order dated 12.12.2017 passed by the 2nd respondent in rejecting the admission of appeal filed by the petitioner, the present writ petition is filed.

2. The petitioner is a registered VAT dealer on the rolls of 1st respondent having engaged in the business of purchase and sale of vegetable oils within the State. In addition to the same, the petitioner also engaged in purchase and sale of pulses and paddy. The 1st respondent conducted audit on the accounts of the petitioner for the tax period 2010- 11 and 2011-12, which culminated in passing of assessment order dated 30.04.2012, through which tax amounting to Rs.2,07,53,383/- was demanded, on the ground that the petitioner had claimed excess Input Tax Credit, under declaration of turn over etc.

3. Aggrieved by the said assessment order, the petitioner filed appeal and after hearing the matter, the 2nd respondent by order dated 20.06.2012, partly remanded and partly allowed by directing the 1st respondent to obtain the reports from the Territorial Commercial Tax Officers, whether the sellers of petitioner had disclosed the turnover claimed by the petitioner to the department during the relevant period.

4. It is the case of the petitioner that, it received notice dated 14.09.2017 from the 1st respondent raising a demand of Rs.3,89,12,566/- towards tax and penalty for the period 2009-10 to 2011-12. It is further case of the petitioner that, after receipt of the said notice only, it came to know that the 1st respondent passed assessment order dated 31.03.2015, re-determining the tax pursuant to the order in appeal dated 20.06.2012 passed by the 2nd respondent. It is specific case of the petitioner that, the alleged show cause notice dated 12.12.2014 said to have been issued before passing the assessment order dated 31.03.2015 was not received by it and it had no knowledge about the issuance of show cause notice dated 12.12.2014 or passing of assessment order dated 31.03.2015. It came to know about the same only after it received notice dated 14.09.2017 raising the demand. Thereafter, the assessment order was obtained by it from the website of the respondent department and filed appeal before the 2nd respondent on 15.11.2017.

5. The 2nd respondent by order dated 12.12.2017, rejected the appeal on the ground that the petitioner filed the appeal with a delay of 2 years 4 months and 20 days, without offering any explanation. Aggrieved by the same, the present writ petition is filed.

6. The 1st respondent filed counter affidavit denying the averments in the affidavit filed in support of the writ petition by contending that the show-cause notice and assessment orders were sent through registered post and the same have been returned with an endorsement that “no such assesses at the mentioned address”. It is further contended that the 1st respondent also sent copy of the assessment order through office subordinate, who visited the business premises of the petitioner on 08.04.2015, 13.05.2015 and 03.06.2015, but the same could not be served as no person was available in the registered place of business of the petitioner.

7. Heard counsel for the petitioner and learned Government Pleader for Commercial Taxes.

8. Perused the record.

9. The counsel for the petitioner would contend that the petitioner did not receive show-cause notice dated 12.12.2014 or assessment order dated 31.03.2015 issued by the 1st respondent. The petitioner came to know about the assessment order, only after receipt of notice dated 14.09.2017, through which the petitioner was asked to pay the tax dues. On the other hand, the learned Government Pleader would strenuously contend that the order was sent through registered post and the same was returned with an endorsement no such person available. Further, the office subordinate of the 1st respondent also sent for service of the assessment order, but the business premises of the petitioner was under lock and key continuously, therefore the same could not be served physically and affixed at the business premises of the petitioner.

10. Be that as it may, on perusal of the record it is evident that when initial order of assessment was passed on 30.04.2012, the same was assailed before the 2nd respondent and the same was partly remanded and partly dismissed by order dated 20.06.2012. Therefore, an inference can be drawn that the petitioner was diligently pursuing the matter before the appellate authority. Further, having knowledge of the order passed by the 2nd respondent despite issuance of show cause notice, the petitioner did not choose to appear and participate before the 1st respondent in assessment proceedings. Further, after following the procedure contemplated under AP VAT Act, 2005 and the rules made there under, the 1st respondent passed consequential order dated 31.03.2015.

11. Be that as it may, on perusal of the averments made in the affidavit filed in support of the writ petition, it is observed that the petitioner received notice dated 14.09.2017 from the 1st respondent demanding payment of tax and penalty. The petitioner failed to mention the mode of service and the address mentioned in the said notice. Going by the averments of the writ petition, an inference can be drawn that the contention that it had no knowledge of the passing of the assessment order, is nothing but an afterthought. Further, if the petitioner had really not been doing the business or closed the business activity, it is incumbent on it, to inform the same to the 1st respondent. Nothing is placed on record to show that the petitioner had informed the same to the 1st respondent.

12. In view of the above and after following the procedure contemplated under Rule 64 of the AP VAT Rules, the assessing authority passed order dated 31.03.2015. On perusal of the record it is clear that, the appeal was filed after a period of 2 years 4 months and 20 days, and the explanation offered by the petitioner cannot be believed. In the absence of the same, the contention of the counsel for the petitioner is liable to be rejected. Further, the petitioner having slept over the matter approached the appellate authority without explaining the delay. Apart from the same, as already observed supra the petitioner failed to explain as to how it received the demand notice dated 14.09.2017 from the 1st respondent. From the above it is clear that, the petitioner filed the appeal without properly explaining the delay.

13. For the reasons recorded supra, this Court does not find any illegality or infirmity in the impugned order dated 12.12.2017, passed by the 2nd respondent. Viewed from any angle, there are no merits in the writ petition and accordingly the same is dismissed.

                  There shall be no order as to costs.

                  As a sequel, pending applications, if any, shall stand closed.