THE HON'BLE SRI JUSTICE GODA RAGHURAM & THE HON'BLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No.21520 OF 2011 Dated: 03.08.2011 Between: M/s. Magniram Netaram ..... PETITIONER AND 1 The Commercial Tax Officer, Osmangunj Circle, Gaganvihar, M.J. Road, Nampally, Hyderabad and others. .....RESPONDENTS The Court made the following : THE HON'BLE SRI JUSTICE GODA RAGHURAM & THE HON'BLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No.21520 OF 2011 ORDER: (Per the Hon’ble Sri Justice Goda Raghuram) The order of assessment dated 18.6.2011 passed by the 1st respondent under the provisions of A.P. Value Added Tax, 2005 for the tax period October, 2008 to December, 2008 in respect of the petitioner is assailed in this writ petition. The petitioner is a registered dealer under the A.P.V.A.T. Act, 2005 on the rolls of the 1st respondent. Under the authorization of the Deputy Commissioner (CT), the 2nd respondent inspected the premises of the petitioner for advisory audit on 16.12.2008 and thereafter returned the books of accounts etc., to the petitioner. Subsequently, however, the 2nd respondent issued notice dated 29.1.2009 proposing to levy tax on the specified turn over by adding 15% G.P. on the ground that the purchase register got filed by the petitioner revealed purchase of certain commodities, which were not reported to the C.T.O through the VAT-200 returns. Despite the petitioner’s objections, eventually the 2nd respondent passed an order of assessment dated 1.3.2009 and also an order of penalty dated 13.4.2009 imposing penalty equivalent to the tax liability determined. The petitioner preferred a statutory appeal before the 3rd respondent, which was disposed of on 30.4.2011. Inter alia the petitioner contended before the 3rd respondent-appellate authority that the 2nd respondent, who had authorization only for audit, was not authorized to pass an order of assessment. The 3rd respondent-appellate authority following the judgment of this Court in Balaji Flour Mills & Others reported in 52 APSTJ 85 (AP) set aside the order of assessment dated 1.3.2009 passed by the 2nd respondent and the consequent order levying penalty and directed the 2nd respondent to submit the audit report for appropriate post audit action including assessment. Thereafter, the 1st respondent-the territorial assessing authority of the petitioner without issuing show cause notice and without affording an opportunity to the petitioner passed the impugned order of assessment dated 18.6.2011 allegedly reiterating the earlier invalidated assessment order dated 1.3.2009 passed by the 2nd respondent. This is the substantive challenge in the writ petition. On instructions, the learned Standing Counsel for the Commercial Tax Department Sri Balaji Varma fairly states that the impugned order of assessment was passed without notice or opportunity to the petitioner. In view of the assertion of the petitioner as to the impugned order of assessment having been passed without notice and opportunity to the petitioner having been affirmed by the Revenue by way of instructions to the learned Special Government Pleader, the impugned order cannot be sustained and is accordingly quashed. It shall however be open to the 1st respondent/competent assessing authority to pass an order of assessment afresh after following the due process of law and in accordance with law. The writ petition is allowed as above but at the stage of admission. In the circumstances however, there shall be no order as to costs. ____________________ Justice Goda Raghuram ______________________ Justice Ashutosh Mohunta Dated: 3.8.2011 Nn. THE HON'BLE SRI JUSTICE GODA RAGHURAM & THE HON'BLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No.21520 OF 2011 (Order delivered by the Hon’ble Sri Justice Goda Raghuram) 3.8.2011