IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTIETH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION No.28003 of 2008 Between: M/s. Cobra Instalaciones Y Services S.A., B-324, New Friends Colony, New Delhi, rep. by its Manager (Accounts), Madhusudan Darjee. ..... PETITIONER AND 1 N. Kantha Rao Commerical Tax Officer, No.II, Nellore, Nellore District. 2 J.V.M. Sarma Assistant Commissioner (CT), LTU, Nellore, Nellore District. 3 The Deputy Commissioner (CT), Nellore, Nellore District. 4 The Commissioner of Commercial Taxes, Government of Andhra Pradesh, Hyderabad. 5 The State of Andhra Pradesh, rep. by its Secretary, Revenue (CT) Department, Secretariat Buildings, Hyderabad. 6 M/s. Rail Vikas Nigam Ltd., (A Government of India Enterprises), D.No.9-1-129/302, 3rd Floor, Oxford Plaza, Sarojini Devi Road, Secunderabad-500 003, rep. by its General Manager (Electrical) .....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 to issue an appropriate writ or order or direction more particularly one in the nature of Writ of Mandamus declaring:- a) that the action of the 1st respondent in passing the impugned order dated 20.11.2008 in refusing to grant the certificate in Form 501D though no part of the turnover of works contract executed with the 6th respondent is exigible to tax under the Provisions of AP VAT Act, 2005 relying on the order passed by the Authority for clarification and advance ruling in the case of M/s. Navayuga Engineering Company Ltd., Visakhapatnam dated 27.05.2008 as illegal, arbitrary, high-handed, without authority of law and jurisdiction and set aside the same; and b) declare that Clause (iii) of Sub- Section 4 of Section 67 as invalid and ultra-virus since it makes the valid right of appeal provided under the Statute as futile in view of the binding nature of the order passed by the Authority for Clarification and Advance Ruling on all authorities including the Appellate Authorities and strike down the same; and c) declare that the petitioner's application in Form 501C dated 14.07.2008 shall be deemed to have been accepted in view of Clause (f) of Sub-Rule (1) of Rule 18 of AP VAT Rules, 2005 since the 1st respondent did not pass any orders on the application within the stipulated time of 60 days from the date of receipt of the applications in Form 501C and pass Counsel for the Petitioner:MR.BHASKAR REDDY VEMIREDDY Counsel for the Respondent No.: GP FOR COMMERCIAL TAX The Court made the following : THE HON'BLE MR JUSTICE GODA RAGHURAM and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION No.28003 of 2008 ORDER: (per the Hon’ble Sri Justice Goda Raghuram) Heard the learned counsel for the petitioner and the learned Standing Counsel for Commercial Tax for respondents. The petitioner’s application under Rule 18(1)(f) of AP VAT Rules, 2005 read with the relevant provisions of APVAT Act, 2005 in Form 501C for quantification of the tax deducted at source in relation to the works executed by the petitioner for the 6th respondent has been rejected by order of the 7th respondent, dated 20-11-2008, impugned herein. The rejection is ordered inter alia as the 7th respondent was satisfied that in view of the Advance Ruling issued by the Advance Ruling Committee in proceedings Ref.NoAR.Com./156/2007, dated 27-05-2008, in the case of M/s.Navayuga Engineering Company Limited, Visakapatnam and the decision of the STAT in the case of M/s.KMC Constructions Limited, Hyderabad, the goods involved in the execution of works contract, which are purchased from out of the State dealers are liable to be assessed to tax under the APVAT Act, 2005. It is the grievance of the petitioner that the 7th respondent has failed to consider the decisions of this court reported in 39 APSTJ 23 and 132 STC 272 as well as the provisions of Section 4(7)(g) of A.P.Value Added Tax Act, 2005 (added by Act 5 of 2007 with effect from 01-09- 2006), which are clearly on the issue as to the liability of goods purchased from outside the State dealers employed in the execution of works contract and the liability to tax under the Act of such goods. As the impugned order of the 7th respondent does not refer to the provisions of Section 4(7)(g) of the Act nor does it take into consideration the decisions of the jurisdictional High Court in the cases referred to supra, which are directly on the issue, it is the considered view of this court that the impugned order is unsustainable and is accordingly set aside. The application of the petitioner in Form 501C is also rejected by the 7th respondent on the ground that the petitioner failed to enclose with the application a copy of the agreement and the quantification of the estimation of the material required in the contract executed by the petitioner in favour of the 6th respondent. The petitioner’s counsel states that though this material was already appended to the application in Form 501C, the petitioner would again furnish this material for consideration of the 7th respondent and will do so within a period of one week from the date of receipt of a copy of this order. In the circumstances, it is hereby directed that the 7th respondent shall receive all the material produced by the petitioner and pass an acknowledgment in receipt of the same. The order of the 7th respondent, dated 20-11-2008, is accordingly set aside and the 7th respondent is directed to pass an order afresh on the petitioner’s application in Form 501C duly considering the provisions of Section 4 (7)(g) of the Act and the judgments of this court reported in 39 APSTJ 23, 132 STC 272 and 23 APSTJ 195 and any other provision or precedent that may appear relevant and germane to the issue. The 7th respondent shall pass a reasoned order reflecting due consideration of the above statutory and precedential authorities afresh, within a period of four weeks from the date of receipt of a copy of this order. The writ petition is disposed of as above, at the stage of admission. There shall be no order as to costs. ____________________ GODA RAGHURAM, J __________________ SANJAY KUMAR, J Date: 30-12-2008 Note: Issue C.C. in three days (B/o) Prv