BHARAT HEAVY ELECTRICALS LTD. Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) BEING aggrieved by the orders passed by the Joint Commissioner (CT) Legal, O/o. The Commissioner of Commercial Taxes, Hyderabad in Commissioner of Commercial Taxes's Ref. No. L.III (1) 516/2000, dated 9 -1 -2001, the present appeal has been preferred. The appellants M/s. Bharat Heavy Electricals Limited, Ramachandrapuram filed this appeal. The appellant was finally assessed by the Commercial Tax Officer, Sangareddy, Medak District for the assessment year 1981 -82 by his order dated 31 -3 -1986. The appellants are manufacturers of T.G. Sets, Breakers, Compressors and Rig materials. They are assessed under CST Act and they are on the rolls of Commercial Tax Officer, Sangareddy. The appellant being aggrieved by the orders passed by the Commercial Tax Officer, Sangareddy, preferred appeal before the Appellate Deputy Commissioner (CT), Company Division, Hyderabad in Appeal No. C/56/86 -87, dated 31 -3 -1987. The Appellate Authority by its order partly dismissed, partly allowed and partly remanded the appeal. Thereupon, the appellants filed Tribunal Appeal before this Tribunal vide TA No. 258/91. This Tribunal by its order dated 30th December, 1994 allowed the appeal and remanded the matter to the assessing authority with a direction to make fresh assessment in the light of the observations, keeping in view the views expressed by this Tribunal in the earlier decision reported in, 12 APSTJ 262 after giving due opportunity to the appellant. Thereupon, a revision assessment order was passed by the Commercial Tax Officer on 15 -1 -1997. The Commercial Tax Officer after hearing the parties by taking into consideration the judgment of this Tribunal, the judgments of the Hon'ble High Court and the judgment of the Hon'ble Supreme Court passed revised assessment orders under the CST act as indicated below:

(2.) CHALLENGING the revision assessment orders passed by the Commercial Tax Officer, the appellant preferred appeal before the Appellate Deputy Commissioner in Appeal No. 693/96 -97. While this appeal is pending before the Appellate Authority, the Joint Commissioner (CT) Legal, O/o. The Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad in exercise of his powers under Section 20(2) of the APGST Act intended to revise the orders passed by the Commercial Tax Officer, Sangareddy dated 15 -1 -1997 and 17 -4 -1998. The Commercial Tax Officer passed orders dated 17 -4 -1998 when a revision show cause notice was issued by the Commercial Tax Officer by his notice dated 20 -7 -1997 since he wanted to revise his own order on examination of assessment file for the year 1981 -82 when he observed that a turnover of Rs. 5,10,53,560/ - escaped the assessment taking into consideration the Judgment of Hon'ble Supreme Court. A revision show cause notice was issued on 20 -7 -1996 and after receiving the reply, the Commercial Tax Officer passed confirmation order which was proposed in the revised show cause notice dated 20 -7 -1997 by his order dated 17 -4 -1998. Challenging this confirmation order, the appellant preferred another appeal before the Appellate Deputy Commissioner in Appeal No. N/50/98 -99. While this appeal is pending as referred earlier, the Joint Commissioner (Legal) intended to revise the assessment order dated 15 -1 -1997 as well as the Commercial Tax Officer's confirmation order dated 17 -4 -1998 by issuing a pre -revision show cause notice to the assessee. The notice was issued by the Revisional Authority on 5 -7 -2000 calling for the objections of the appellant. The appellant submitted reply on 26 -12 -2000. After receiving the reply and after hearing the parties, the Revision Authority passed its order on 9 -1 -2001. The Revisional Authority in the pre -revision show cause notice observed that on examination of assessment record, instead of levying tax at 10% on the turnover of Rs. 17,79,60,199/ -, taxed it at 4% only though there is no evidence to prove that the goods are liable to tax at a lower rate. Hence, he proposed to assess the said turnover at differential rate of tax at 6%. Apart from it, it is also observed by the Revisional Authority that on verification of 'C forms, the 'C form issued to M/s. DCM Limited for Rs. 1,14,40,000/ - was signed and issued to BHEL, Ramachandrapuram by M/s. Shivaram Foods & Fertilizers Industries, New Delhi and hence it is observed by him that the 'C form is invalid, consequently it is not entitled to concessional rate of tax at 4% and hence differential tax at 6% was proposed to be levied on Rs. 1,4,40,000/ -. In the reply, it is submitted by the assessee that the turnover of Rs. 17,73,19,910/ - relates to Inter Unit Transactions and in view of the Judgment rendered by this Tribunal reported in, 12 APSTJ 262 in respect of assessment years 1977 to 1980 -81, a direction has been given to the assessing authority to make fresh assessment and it is further submitted by the assessee that the said disputed turnover is a subject matter before the Appellate Deputy Commissioner and the matter is pending before the Appellate Deputy Commissioner for adjudicating the dispute on this turnover. So far as the turnover of Rs. 1,14,40,000/ - with reference to defective 'C' form is concerned, they are filing correct 'C form and requested for dropping the action. The revisional authority on verification of the 'C' form and having been satisfied that it is in order, accepted it and observed that the levy of tax by the assessing authority on the turnover of Rs. 1,14,45,000/ - is in accordance with law. But, however observed that as there is no evidence to show that the turnover of Rs. 17,73,19,313/ - relates to inter -unit transactions, having confirmed the proposal made by him to levy differential tax of 6% in revision show cause notice and accordingly passed order directing the Commercial Tax Officer to give effect to this order.

(3.) AT the time of hearing of the appeal, it has been contended by the learned counsel for the appellant that when the appeal before the Appellate Deputy Commissioner is pending in respect of the same subject matter and when a representation has been made before the Revisional Authority, he ignored the same and passed the order. It is also further contended that the order passed by the JC is barred by time since the JC under the guise of revision intended to revise the consequential orders passed by the Commercial Tax Officer instead of the original assessment order.