THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.27739 of 2007, 2557, 2571, 2988, 4323, 4344 and 9231 of 2008 February 28, 2011 Between: M/s.Hari Transport, represented by its Proprietor, Sri G.Rajendra Prasad And others … Petitioner And Government of Andhra Pradesh, represented by its Special Chief Secretary, Revenue Department, Hyderabad And another … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.27739 of 2007, 2557, 2571, 2988, 4323, 4344 and 9231 of 2008 COMMON ORDER: (Per Hon’ble Sri Justice Ramesh Ranganathan) In this batch of writ petitions, among the reliefs sought for, is to declare that the transportation charges which the petitioner receives on making available oil tankers to refineries is not amenable for levy of tax under Section 4(8) of the Andhra Pradesh Value Added Tax Act, 2005 (the VAT Act) on the ground that there is no transfer of the right to use the goods involved therein. The order of assessment passed by the Commercial Tax officer, levying tax under Section 4(8) of the VAT Act, is under challenge herein. It would suffice for the purpose of disposal of this batch of writ petitions to note the facts in W.P.No.9231 of 2008. The petitioner claims to have entered into a contract with M/s.Reliance Logistics (P) Ltd., (RLL) for transportation of petroleum products such as high-speed diesel, petrol etc., from the depot/stock point of RLL to various retail outlets/petrol pumps. According to the petitioner, the transportation charges are payable on mileage basis i.e., RLL will pay the transportation charges on slab rates depending upon the actual distance which the petitioner transports high-speed diesel and petrol; and the entire maintenance of the tankers is his responsibility. Among the grounds raised, in challenge to the order of assessment, is that the agreement was entered into at Mumbai; the situs of sale, if any, has taken place outside the State of Andhra Pradesh; and as such the VAT Act has no application. Reliance is placed by Sri P.Girish Kumar, learned Counsel for the petitioners, on 20th Century Finance Corporation v State of Maharashtra[1] and BSNL v Union of India[2] in this regard. According to the learned Counsel, since the agreement had been entered into at Mumbai, the situs of the deemed sale, even assuming it is one, is only at Mumbai i.e., outside the territorial jurisdiction of the first respondent and, as such, the first respondent had exceeded his jurisdiction in levying tax under Section 4(8) of the VAT Act. A perusal of the order of assessment shows that this aspect has not even been dealt with therein. As the very jurisdiction of the first respondent, to assess the petitioner to tax under Section 4(8) of the VAT Act, would revolve around the question as to whether the situs of the deemed sale is within or outside the State of Andhra Pradesh, the order of assessment must be, and is accordingly, set aside. The first respondent shall put the petitioner on notice and, after giving him an opportunity of being heard, pass a fresh order of assessment. The petitioner also seeks a direction from this Court that Section 67(4)(iii) of the VAT be declared ultra vires as it takes away the powers of quasi-judicial authorities under the VAT Act in view of the binding nature of the order of the Advance Ruling Authority. A Division Bench of this Court, in M/s.Tirupati Chemicals v DCTO, Vijayawada[3], upheld the validity of Section 67(4)(iii) of the VAT Act and, as such, the challenge thereto must fail. It is made clear that, on receipt of the notice from the first respondent, it is open to the petitioner to raise all such objections as are available to them in law. The writ petitions are allowed in part to the extent that the assessing authority did not examine the petitioners’ contention regarding the situs of the sale being outside the State of Andhra Pradesh. No costs. _______________ (V.V.S.RAO, J) ______________________________ (RAMESH RANGANATHAN, J) February 28, 2011 YS [1] (2000) 6 SCC 12 : (2000) 119 STC 182 [2] (2006) 3 SCC 1 : (2006) 145 STC 91 [3] W.P.Nos.1582 and 2219 of 2010, dated 25.11.2010