C.Praveen Kumar, J. -
(1.)The present Writ Petition came to be filed seeking issuance of a writ of Certiorari or any other appropriate writ or direction, quashing the penalty order in Form VAT 203, dated 04.07.2019, passed by the Commercial Tax Officer, Vijayawada, for the period September 2014 to November 2016 under A.P. Value Added Tax Act as illegal arbitrary and consequently to set-aside the same.
(2.)The facts, in issue, are that:
i. The Petitioner is said to be a registered dealer under the provisions of A.P. Value Added Tax Act, 2005 and Central Sales Tax Act 1906. The Petitioner is engaged in the business of pesticides and bio-products. It is said that the 1st Respondent finalized its Assessment Order, dated 27.04.2018, on two issues, input tax credit in the absence of original tax invoices; and sales returns beyond the period of one year stipulated. Total levy as per the Assessment Order is said to be Rs., 10,29,579/-. The Petitioner claims to have paid a sum of Rs., 2,76,345/- as admitted liability, since the claim was made beyond the period prescribed under the Act. The 1st Respondent levied penalty of 25% tax on account of ineligible input tax credit and 100% on under-declaration output tax, which are Rs., 1,88,303/- and Rs., 2,76345/- respectively.
ii. Challenging both the Order of assessment and penalty Orders, dated 27.04.2018 and 16.07.2018, two separate appeals came to be preferred before the Appellate Deputy Commissioner, Vijayawada, who by his Orders, dated 04.08.2018 and 24.09.2019, remanded the matters back to the 1st Respondent to pass the orders afresh causing denovo verification of entire issue with reference to the petitioner's claim.
iii. Pursuant to the directions issued, the 1st Respondent passed consequential Order, dated 14.03.2019, whereby, a refund of Rs., 94,154/- was found as excess to be refunded to the Petitioner. The 1st Respondent also issued a show-cause notice levying penalty vide show-cause notice, dated 10.06.2019. A reply came to be filed, on 29.06.2019, requesting the 1st Respondent to withdraw the proposal in respect of levy of tax at 100% proposed under Section 53(3) of the Act, whereas, the penalty at 25% would be dependent on the issue of remand in tax appeal. By an Order, dated 04.07.2019, the 1st Respondent confirmed the penalty at 100% on admitted tax liability and paid by the Petitioner without contesting the issue in appeal. Challenging the same, the present appeal came to be filed.
(3.)The learned Counsel for the petitioner mainly submits that the question of payment of penalty would not arise, since, there is no material to show that ingredients of Section 53(3) of the Act, are made out against the petitioner. It is pleaded that, there is no fraud or willful intention to evade tax, as the petitioner has claimed exemption on sale returns, on the ground that it was made within time. It is further pleaded that, though, an appeal lies against the Order, dated 04.07.2019, it would be a futile exercise, in view of the earlier order of the Appellate Deputy Commissioner remanding the matter to the 1st Respondent to pass orders after denovo verification.