Sujana Enterprises Vs. Assistant Commercial Tax Officer (int.) Fac and anr.

Sujana Enterprises vs Assistant Commercial Tax Officer (int.) Fac and anr.

Disposition Petition allowed Court Andhra Pradesh Decided Sep 13, 2005

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Citation: sooperkanoon.com/441213
Court: Andhra Pradesh High Court
Judge: J. Chelameswar and ;M. Venkateswara Reddy, JJ.
Decided On: Sep 13, 2005
Case Number: Writ Petition No. 19784 of 2005
Subject: Other Taxes
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- SPECIFIC RELIEF ACT, 1963 [C.A. No. 47/1963]. Sections 31 & 34: [Bilal Nazki, V.V.S. Rao & G. Chandraiah, JJ] [Per Court] Cancellation of registered sale deed Inherent power of registering authority - Fraudulent transfer of property Sale taking place by reason of fraud played by transferor and transferee Held, ...

Key legal issue: Other Taxes
Outcome / disposition: Petition allowed
Acts & sections: Andhra Pradesh Value Added Tax Act, 2005 - Sections 45(3) and 45(6); ;Value Added Tax Rules; ;Central Sales Tax Act

Parties & Advocates

Appellant / Petitioner

Sujana Enterprises

Advocate Shaik Jeelani Basha, Adv.

Respondent

Assistant Commercial Tax Officer (int.) Fac and anr.

Advocate The Government Pleader

Legal References

Acts: Andhra Pradesh Value Added Tax Act, 2005 - Sections 45(3) and 45(6); ;Value Added Tax Rules; ;Central Sales Tax Act
Reported In: [2005]142STC598(AP)

Excerpt

.....is empowered to cancel sale deed earlier registered. registration of document cannot be understood to be an absolute sale divesting vender of its title else it would render sections 31 and 34 of specific relief act, otiose. -- transfer of property act,1882[c.a. no. 4/1882]. sections 53 & 126: [per court] cancellation of registered sale deed inherent power of registering authority - fraudulent transfer of property sale taking place by reason of fraud played by transferor and transferee held, it is void. true owner can nullify the sale by executing and registering a cancellation deed without seeking declaration or cancellation of fraudulent transfer deed from court. registering authority is empowered to cancel sale deed earlier registered. registration of document cannot be understood to be an absolute sale divesting vender of its title else it would render sections 31 and 34 of specific relief act, otiose. - the said vehicle was detained by the first respondent on september 3, 2005 near chittoor town and on verification of the material, the first respondent came to the conclusion that there are various irregularities in the documents like undervaluation of the goods, inaccurate description of the quantity of material, etc. 7. section 45(3)(b)(ii) reads as follows :that the sale or purchase of the goods carried has, for the purpose of payment of tax not been properly accounted for in the documents referred to in clause (b) of sub-section (2) ;and if the said officer is satisfied, after making such enquiry as he deems fit, that with a view to prevent the evasion of tax payable in respect of the sale or purchase of the goods, carried, it is necessary to detain the goods he shall detain the goods and direct the driver or any other person-in-charge of the goods vehicle or vessel to pay such tax, or to furnish security for an amount equal to two times the amount of tax payable in such form and in such manner and to such authority as may be prescribed, on behalf of..........the provisions of the vat act and rules read with central sales tax act and consequently direct the first respondent to release the vehicle along with the goods forthwith.'2. the petitioner is a proprietary concern carrying on the business of manufacture and sale of granite and granite tiles and also a registered dealer both under the central sales tax act and the a.p. value added tax act, 2005 with the second respondent herein.3. a consignment of block galaxy granite tiles was sold by the petitioner to m/s. italia marbles, conjoni road, chettipuza, thrishur, state of kerala vide invoice no. 7, dated september 2, 2005 and dispatched by the petitioner by a lorry bearing no. ap-27v-2939. according to the petitioner, the said consignment was accompanied by all the necessary documents. the said vehicle was detained by the first respondent on september 3, 2005 near chittoor town and on verification of the material, the first respondent came to the conclusion that there are various irregularities in the documents like undervaluation of the goods, inaccurate description of the quantity of material, etc. therefore, the first respondent in exercise of the powers under section 45(6) of the a.p. value added tax act, 2005 detained the vehicle and consignment. hence the present writ petition.4. when the matter is taken up on september 6, 2005, notice before admission was ordered to enable the learned special standing counsel to obtain instructions in the matter. today, when the matter is taken up, learned counsel for the petitioner placed before this court a show cause notice dated september 6, 2005, wherein the first respondent proposed to levy tax of rs. 13,021 and it is also indicated in the said show cause notice that separate action is being initiated for levy of penalty for the alleged offence committed by the petitioner.5. learned counsel for the petitioner submitted that under section 45(3)(b)(ii) of the a.p. value added tax act, 2005, whenever goods are detained on.....

Full Judgment

ORDER

J. Chelameswar, J.

1. This writ petition is filed with a prayer as follows :

'...Honourable court may be pleased to issue writ of mandamus or any other appropriate writ or order declaring the action of the first respondent in detaining the goods worth of Rs. 1,14,660 of block galaxy tiles 4410 square foot detained by the first respondent on September 3, 2005 along with the vehicle bearing No. AP. 27V 2939 as arbitrary contrary to the provisions of the VAT Act and Rules read with Central Sales Tax Act and consequently direct the first respondent to release the vehicle along with the goods forthwith.'

2. The petitioner is a proprietary concern carrying on the business of manufacture and sale of granite and granite tiles and also a registered dealer both under the Central Sales Tax Act and the A.P. Value Added Tax Act, 2005 with the second respondent herein.

3. A consignment of block galaxy granite tiles was sold by the petitioner to M/s. Italia Marbles, Conjoni Road, Chettipuza, Thrishur, State of Kerala vide Invoice No. 7, dated September 2, 2005 and dispatched by the petitioner by a lorry bearing No. AP-27V-2939. According to the petitioner, the said consignment was accompanied by all the necessary documents. The said vehicle was detained by the first respondent on September 3, 2005 near Chittoor Town and on verification of the material, the first respondent came to the conclusion that there are various irregularities in the documents like undervaluation of the goods, inaccurate description of the quantity of material, etc. Therefore, the first respondent in exercise of the powers under Section 45(6) of the A.P. Value Added Tax Act, 2005 detained the vehicle and consignment. Hence the present writ petition.

4. When the matter is taken up on September 6, 2005, notice before admission was ordered to enable the learned Special Standing Counsel to obtain instructions in the matter. Today, when the matter is taken up, learned Counsel for the petitioner placed before this Court a show cause notice dated September 6, 2005, wherein the first respondent proposed to levy tax of Rs. 13,021 and it is also indicated in the said show cause notice that separate action is being initiated for levy of penalty for the alleged offence committed by the petitioner.

5. Learned Counsel for the petitioner submitted that under Section 45(3)(b)(ii) of the A.P. Value Added Tax Act, 2005, whenever goods are detained on suspicion that there is evasion of tax, the detaining authorities are entitled to direct payment of either tax or furnish security for an amount equal to two times of the amount of tax payable, and therefore, the demand in the show cause notice calling upon the petitioner to provide security for an amount of Rs. 39,063 in the shape of bank guarantee is illegal. Even according to the show cause notice, the tax liable to be paid on the goods in question, even if all the allegations of the respondents are finally proved, would only be Rs. 13,021.

6. Heard the learned Government Pleader.

7. Section 45(3)(b)(ii) reads as follows :

'that the sale or purchase of the goods carried has, for the purpose of payment of tax not been properly accounted for in the documents referred to in Clause (b) of Sub-section (2) ; and

if the said officer is satisfied, after making such enquiry as he deems fit, that with a view to prevent the evasion of tax payable in respect of the sale or purchase of the goods, carried, it is necessary to detain the goods he shall detain the goods and direct the driver or any other person-in-charge of the goods vehicle or vessel to pay such tax, or to furnish security for an amount equal to two times the amount of tax payable in such form and in such manner and to such authority as may be prescribed, on behalf of the person liable to pay such tax.'

8. It is obvious from the language of the above-mentioned section that at the stage of detention of the goods under suspicion that there is evasion of tax, the respondents cannot demand both the tax and the penalty. The penalty proceedings are yet to be initiated.

9. In the circumstances, we deem it appropriate to allow the writ petition directing the respondents to release the vehicle bearing No. AP 27-V 2939 along with the consignment that was seized by the respondents on condition that the petitioner deposits an amount of Rs. 13,021 with the respondents.

10. The writ petition is accordingly allowed.

Same Court & Year Andhra Pradesh · 2005 Same Parties Sujana Enterprises vs Assistant Commercial Tax Officer (int.)... Same Subject Other Taxes Same Judge J. Chelameswar and ;M. Venkateswara Reddy, JJ. Acts & Sections Andhra Pradesh Value Added Tax Act, 2005 - Sections 45(3) and...

Other Taxes