Decided on November 02,2019

Back Bone Projects Ltd. Appellant


M.Seetharama Murti, J. - (1.)This writ petition, under Article 226 of the Constitution of India, is filed seeking verbatim the following relief:
' issue a writ, order or direction more particularly one in the nature of Writ of Mandamus, declaring the action of the 4th Respondent audit cum assessment order dated 134.03.2018, for tax due amount of Rs.13,00,609/- as illegal, arbitrary, unconstitutional and violation of principles of natural justice and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.'

(2.)We have heard the submissions of Sri Bomminayyuni Appa Rao, learned counsel appearing for the petitioner; of the learned Government Pleader for Revenue, appearing for the 1st respondent; and, of the learned Government Pleader for Commercial Taxes appearing for respondents 2 to 4. We have perused the material record.
(3.)The case of the petitioner is this: The petitioner's Head Office is situated at Aurangabad, Bombay. It's Branch Office is situated at Hyderabad, State of Telangana. The petitioner is engaged in Works Contracts. The petitioner is a registered dealer both under the Value Added Tax Act, 2005 ('AP VAT Act') and the Central Sales Tax Act, 1956 ('CST Act') on the rolls of the 3rd respondent. The petitioner is engaged in infrastructure, industrial, marine and institutional projects. The petitioner started construction work of Andhra Pradesh State Government. The estimated value of the work was Rs.72,00,00,000/-. The value of the work to be done as per the terms of the agreement was Rs.53,89,00,009/-. The work has to be done within 36 months. After the work was allotted to the petitioner company, it has given 50% of the work to sub contract to M/s. R.K. Engineers. The entire work was completed within the stipulated time. While so, the petitioner received final Audit-cum-assessment order, dated 14.03.2018, from the 4th respondent. In the Audit-cum-assessment order, it is stated that a show cause notice has been issued and objections were called for and that since no objections were filed and the opportunities of personal hearing were not availed, the said Audit-cum-assessment order was passed for the period from 2014 to 2017. The petitioner was directed to pay Rs.13,00,609/- towards tax due within 30 days from the date of receipt of the said order. Within a short period thereafter, Penalty Order was passed by the 4th respondent, on 09.04.2018, for non-complying the Audit-cum-Assessment Order, dated 14.03.2018. The petitioner was also liable for penal action for the act of under declaration of tax as per Section 53(3) of the APVAT Act. Therefore, the penalty imposed was Rs.13,00,609/- @ 100% of the tax due. The petitioner is in the habit of filing Form 250 to the 4th respondent from time to time. The petitioner is availing the benefit of payment of tax of 5%. Due to miscommunication from the person concerned, who was looking after the tax issues & submission of Form 250; and, on account of that person falling sick and leaving the company without informing the company about the non-submission of Form 250 and computation, the petitioner company was unaware of the show-cause notice. Therefore, consequential orders came to be passed. The petitioner filed representation, dated 19.06.2018, to give an opportunity of hearing and revise the assessment order. There was no response from the competent authority. The non-submission of Form 250 is neither willful nor wanton but due to miscommunication and the conduct of the employee concerned of the company. Earlier, a writ petition in W.P. No.25721 of 2018 was filed. Later, the same was withdrawn with liberty to file a fresh writ petition. Hence, the present writ petition is filed.

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