IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE GODA RAGHURAM and THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 15069 of 2009 Between: Amulya Publishers Vijayawada Rep.by its Partner,Penumudi Venkata Rao Flat NO 9, II Floor Door No 11-40-01 Pulipativari Street, Vijayawada ..... PETITIONER AND 1 The Commissioner Commercial Tax Department of A.P Near Gandhi Bhavan,Nampally Hyderabad 2 The Joint Commissioner(CT) (Legal) Office of the Commissioner of Commercial Taxes Department of A.P Near Gandhi Bhavan,Nampally Hyderabad 3 The Appellate Deputy Commissioner Commercial Taxes Department of A.P Vijayawada 4 The Commercial Taxes Officer(for Samarangam Chowlk Area Face-I Circle-I Commercial Taxes,Department of A.P Office at Gunadala,Vijayawada 5 The Hon'ble Chairman S.T.A.T at Visakhapatnam,Dwarkanagar,Near Gurudwara Visakhapatnam .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order or direction more in the nature of writ of Certiorarised Mandamus or other writ calling the records regarding petitioner's shop from 2,4 and 5 respondents and quash/prohibit/set aside the revision order passed by 2nd respondent dated 29-9-2008 by declaring that said revision order is arbitrary illegal unjust and unconstitutional being violative of principles of natural justice and consequently direct the IV Respondent to not to collect the balance 50% of disputed tax till the disposal of appeal of petitioner in STAT at Visakhapatnam in Case A.R No 190/5 and consequently direct the 5th respondent to dispose Appeal of petitioner in A.R No 190/05 immediately Counsel for the Petitioner:PARTY-IN-PERSON Counsel for the Respondent No.: GP FOR COMMERCIAL TAX The Court made the following : Form-NIC-OGS/WP{BMR} THE HON'BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 15069 OF 2009 ORDER: (Per The Hon’ble Sri Justice Ramesh Ranganathan) The order of the second respondent dated 29.09.2008, revising the order of the third respondent dated 13.10.2004, is under challenge in this writ petition as being arbitrary, illegal and in violation of the provisions of the A.P.G.S.T. Act. (hereinafter referred to as the “Act”) The petitioner seeks consequential directions to the fourth respondent not to collect the balance 50% of the disputed tax till disposal of the appeal filed before the Sales Tax Appellate Tribunal (STAT), Visakhapatnam in A.R. No.190 of 2005 and to the 5th respondent to dispose of the appeal in A.R. No.190 of 2005. 2. The petitioner is a partnership firm and Amulya Publications a sole proprietary concern. Both these concerns are said to carry on business in publication of literary books etc. The fourth respondent passed an order of assessment, for the year 2001- 2002, on 26.06.2004 levying tax on the first sale of greeting cards for Rs.3,460/- and on paper for Rs.2,69,635/-. After deducting the tax paid of Rs.23,155/-, the petitioner was called upon to pay the balance tax of Rs.2,49,940/-. Aggrieved thereby, the petitioner preferred an appeal to the third respondent who, by order dated 13.10.2004, set aside the assessment order in part and remanded the matter back to the fourth respondent. The third respondent held that the estimated value of paper was Rs.24,07,454/- and not Rs.33,70,435/- as estimated by the assessing authority. To this extent, the assessment order was found to be incorrect and the fourth respondent - Commercial Tax Officer was directed to adopt the correct figures and pass orders afresh. 3. Aggrieved by the order of the third respondent, to the extent he had confirmed the order of the fourth respondent, the petitioner preferred an appeal to the STAT. From the appeal memorandum, in Form II under Rule 38, it is evident that the petitioner disputed the turnover of Rs.24,07,454/- and tax thereon of Rs.1,92,596/-. The appeal was limited to that part of the order of the third respondent whereby the order of assessment was confirmed and tax was levied on the turnover of paper of Rs.24,07,454/-. The petitioner claims to have filed an application seeking stay of all further proceedings before the STAT and to have deposited 50% of the disputed tax with it. 4. The second respondent issued notice dated 28.04.2008 proposing to revise the order of the third respondent-Appellate Deputy Commissioner on the ground that the assessing authority had correctly estimated the turnover of paper at Rs.33,70,435/-. The second respondent informed the petitioner that he proposed to set aside the order of the third respondent and the consequential order of the fourth respondent revising the assessment order for the assessment year 2001-2002. The petitioner was informed that the original assessment order of the Commercial Tax Officer dated 26.06.2004 was proposed to be restored and they were called upon to file their written objections, on the proposed revision, along with documentary evidence, if any, within fifteen days from the date of receipt of the notice. 5. The second respondent, by order dated 29.09.2008, confirmed the proposed revision to the extent of the turnover allowed by the third respondent-Appellate Deputy Commissioner. The order of the third respondent was set aside and the order of the assessing authority was restored. In his order dated 29.09.2008, the second respondent noted that the petitioner had preferred an appeal before the STAT to the extent the appeal preferred to the third respondent-Appellate Deputy Commissioner was dismissed on the issue of taxability of purchase of paper used in printing of duplicate student text books but not on the quantum of turnover arrived at 40% of the MRP value of the text books for Rs.84,26,008/-. The second respondent observed that the petitioner had not raised any objection on the issues involved in the revision, that they had printed and sold duplicate textbooks with deceptively similar design, title and marks as that of Government text books, that they had stored the textbooks illegally in a few rooms and had attempted to evade legitimate taxes due to the Government in contravention of the provisions of the Act. The second respondent held that, for printing these textbooks, the petitioner had purchased raw material i.e., paper, ink, etc., from persons other than registered dealers which attracted tax under Section 6-A of the Act, that calculation of purchase value of paper at 40% of the text book value was based on local enquiries made by the assessing authority, that there was no calculation or arithmetical error committed by the assessing authority in arriving at the purchase turnover and, when there was no tax element in the purchase turnover, no deduction towards tax element was required to be allowed by adopting the method of calculation suggested by the third respondent-Appellate Deputy Commissioner. The second respondent concluded that the third respondent had erred in directing deduction of tax on the element embedded in the purchase turnover by adopting a particular formula. The order of the Appellate Deputy Commissioner was set aside and the order of original authority restored. 6. It is this order of the second respondent dated 29.09.2008 which is under challenge in this writ petition. The only ground urged in challenge thereto is that the order of the third respondent could not have been revised during the pendency of the appeal preferred by the petitioner before the STAT in view of the bar under Section 20(2-A) of the Act. 7. In his counter-affidavit, the second respondent submits that the petitioner had filed a self-assessment return, for the year 2001-02, disclosing a net turnover of Rs.28,830/-, that their business premises was inspected by officers of the Vigilance & Enforcement Department on 12.12.2001, that, during inspection, it came to light that the petitioner was printing and selling duplicate text books with deceptively similar design, title and marks of Government printed text books, that the assessing authority had estimated the value of paper at 40% of the MRP value of textbooks, that the value of paper, as worked out by the assessing authority, was Rs.33,70,435/- and that this turnover was subjected to tax at 8% under Section 6-A of the Act. The second respondent would further submit that the third respondent had directed that the purchase turnover should be estimated only at Rs.24,74,054/- and not at Rs.33,70,435/-, that he had concluded that the assessing authority had erred in calculating the value of paper at 40% of the MRP value of text books but had, however, rejected the petitioner’s contention that the paper used by them was procured from other states by issuing ‘C’ forms. The second respondent states that the basic question of liability, under Section 6-A, was answered by the Appellate Authority, in favour of the revenue, that the revision was confined only to the quantum of taxable turnover and the other questions namely exemption of sale of text books, clubbing of turnover etc., were not the subject matter of revision. The second respondent denies applicability of Section 20(2-A) of the Act and states that, while the turnover disputed before the STAT was Rs.24,07,454/-, the order of revision was confined to a turnover of Rs.9,62,981/- other than the turnover of Rs.24,07,454/- disputed before the Tribunal and, therefore, Section 20(2-A) had no application. The second respondent submits that, against the impugned order of revision, the petitioner has a remedy of an appeal to the STAT which they ought to have availed instead of invoking the jurisdiction of this Court under Article 226 of the Constitution of India. 8. In his reply affidavit, the petitioner would dwell in detail regarding the manner of inspection of their premises, to certain criminal cases which they claim were illegally foisted etc., As they have no relevance to the issue which arises for consideration in this writ petition, it is wholly unnecessary for us to deal with them. 9. The only question which necessitates examination is whether the second respondent had acted beyond his jurisdiction in revising the order of the Appellate Deputy Commissioner pending adjudication of the appeal filed by the petitioner before the STAT, Visakhapatnam which we are informed has now been numbered as T.A. No.377 of 2009. 10. Section 20(1) of the Act enables the Commissioner to suo motu call for and examine the record of any order passed or proceeding recorded by any officer subordinate to it, if such order or proceeding recorded is prejudicial to the interests of revenue. Under Section 20(2) the powers conferred under Section 20(1) can also be exercised by the Additional Commissioner, Joint Commissioner, Deputy Commissioner etc., in case the order passed or proceeding recorded is by an authority subordinate to them. Section 20(2-A) prohibits exercise of the power of revision in respect of any issue or question which is the subject matter of appeal before, or which was decided on appeal by, the Appellate Tribunal under Section 21. 11. A Full Bench of this Court, in Indo National Ltd., v. Commissioner of Commercial Taxes, Hyderabad[1], held:- “………….Sub-section (1) of Section 20 is no doubt of wide amplitude. But the revisional power of the Commissioner in terms of Sub-section (1) or sub-section (2) is sought to be curtailed by reason of Sub-section (2-A). The phraseology used in Sub-section (2-A) of Section 20 of the Act is absolutely clear and unambiguous, in terms whereof, a bar has been created to entertain any application in respect of ‘any issue or question’ which was the subject matter of an appeal or which was decided in appeal by the Appellate Tribunal under Section 21. There cannot be any dispute that in the hierarchy of authorities provided for under the Act, the Appellate Tribunal is superior to the Commissioner of the Commercial Taxes. Irrespective of the fact as to whether principles of res judicata will be applicable or not, we are of the opinion that the said provision creates a bar in the exercise of the revisional jurisdiction by the Commissioner if the issue or question has already been decided by the Appellate Tribunal in relation to the earlier assessment year. A distinction must be borne in mind that had the intention of the Legislature been otherwise, the same could have been specified in explicit language as was done in Section 264(4)(c) of the Income Tax Act. The words “issue or question” are of wide amplitude. An issue or question may arise in relation to the self same assessee in respect of any assessment year or it may arise after some years in relation to some other assessee. If such issue or question was the subject matter of appeal before the Appellate Tribunal or if it has been decided by the Appellate Tribunal under Section 21, evidently, on a plain reading of sub-section (2A) of Section 20, the same cannot be the subject matter of revision under Sub-section (1) of Section 21 of the Act. Furthermore, judicial and administrative discipline demands that inferior authority must act in terms of the decision of a superior authority…………….” “………….A question or issue may be on fact or in law. Where it involves a question or issue as of fact, the same may be held to be confined to that particular order and in relation to another assessment year, the fact may be different. But, if the issue or question relates to a point of law, the intention of the Legislature appears to be that the assessee should not be vexed on such question again and again. As indicated hereinbefore if a question or issue decided by the appellate Tribunal is in conflict with the decision of High Court or the Supreme Court, naturally, the latter will prevail. But unless so done, the Commissioner, on a plain reading of the aforementioned provisions, must be held to be bound by such decision of the Tribunal on question of law. A liberal meaning has normally to be attributed while interpreting a statute…………” (emphasis supplied) 12. The law laid down by the Full Bench in Indo National Ltd, as is evident from the afore-extracted observations, is that, if the question or issue is of a fact, the same may be confined to that particular order but, if the issue or question related to a point of law, the intention of the Legislature appeared to be that the assessee should not be vexed on such a question again and again and the bar under Section 20(2-A) would apply. The Full Bench judgment in Indo National Ltd. was followed in two Division Bench judgments of this Court, in Vorion Chemicals and Distillers Ltd., v. Commissioner of Commercial Taxes[2], and M/s. S.L.S. Power Limited, Nellore v. Joint Commissioner, Commercial Taxes[3] 13. Section 20(2-A) bars exercise of revisional jurisdiction under Section 20(1) and (2), only on issues of law pending adjudication before the STAT. We have perused in detail both the writ affidavit and the reply affidavit to satisfy ourselves whether any issue of law is pending adjudication in the appeal preferred by the petitioner to the STAT and whether, on the very same issue, the jurisdiction under Sections 20 (2) of the Act has been exercised. We undertook this task as the petitioner appeared in person and chose not to be represented by Counsel. We are satisfied that no common issues of law arise in the appeal pending adjudication before the STAT and the impugned order of revision passed by the second respondent. 14. The assessment order passed by the fourth respondent related mainly to the turnover of paper of Rs.33,70,435/- which, to the extent of Rs.24,07,454/-, was confirmed in appeal by the third respondent-Appellate Deputy Commissioner. It is only for the remaining turnover of Rs.9,62,981/- was the order of the fourth respondent - assessing authority set aside and remanded for consideration afresh. The petitioner preferred an appeal thereagainst to the STAT restricting the turnover under dispute in the appeal only to Rs.24,07,454/-. The second respondent revised the order of the third respondent only on the turnover of Rs.9,62,981/- and not the turnover of Rs.24,07,454/- which is the subject matter of appeal pending adjudication before the STAT. Let alone issues of law, even on issues of fact the appeal pending before the STAT has nothing in common with the order of the second respondent dated 28.04.2008. 15. Viewed from any angle the writ petition, as filed, is devoid of merits and is, accordingly, dismissed. Needless to state that dismissal of this writ petition will not preclude the petitioner from availing other remedies available in law to challenge the order impugned in this writ petition. No costs. ________________________ GODA RAGHURAM, J Date: 08-10-2009 _______________________________ RAMESH RANGANATHAN, J MRKR/ASP [1] (2001) 33 APSTJ 206 [2] (2008) 47 APSTJ 87 [3] Judgment in W.P. No.8174 of 2009 dated 29.04.2009