THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.19925 of 2011 Dated:19.07.2011 Between: M/s.Weathercover Industrials. … Petitio And The Deputy Commissioner (CT) No.II Division, Vijayawada, And others. ... Responde THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.19925 of 2011 ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) The petitioner is a proprietary concern engaged in the business of manufac and sale of vehicle covers of two and four wheelers, and is a registered dealer on rolls of the third respondent under the Central Sales Tax Act, 1956, as well as unde Andhra Pradesh Value Added Tax Act, 2005 (the Act). They impugn the assessm order which was passed by a non territorial Officer of the rank of Deputy Commercial Officer sequel to an audit conducted by him in purported exercise of authorization iss by the jurisdictional Deputy Commissioner of Commercial Taxes. The case of the petitioner is that the third respondent is their territorial asses authority who issued Tin No.28210169226 to them. While so, the second respon conducted audit of the business premises of the petitioner on 09.07.2010 and iss notice of assessment of value added tax in Form VAT 305A dated 14.07.2010, w was also confirmed vide assessment in Form VAT 305 dated 13.08.2010. Challen the said proceedings, and impeaching Rule 59 of the Andhra Pradesh Value Added Rules, 2005, as ultra vires Section 2(4) of the Act, the petitioner filed W.P.No.3208 2010. By order dated 24.01.2011 the said writ petition was disposed of setting aside assessment order relying on the decision of this Court in Balaji Flour Mills v. Commercial Tax Officer-II, Chittoor, Chittoor District[1]. Be that as it is, the petitio now contends that the second respondent issued notice dated 08.04.2011 stating tha pursuance of the judgment of this Court in W.P.No.32089 of 2010, a fresh authoriza being Authorization of Audit – cum – Assessment Program, was issued by the respondent to the second respondent to undertake assessment. The petitio submitted objections, in vain. The second respondent confirmed the propo assessment by the impugned order in Form VAT 305, dated 28.06.2011. The Deputy Commissioner authorized the Officer to assess the tax due afr The Special Counsel for Commercial Taxes, appearing for the respondents, submits the assessment order having been passed as per the Authorization of Audit – cu Assessment Program issued by the Deputy Commissioner, the order impeache sustainable. It is brought to our notice that, after this Bench delivered judgmen Balaji Flour Mills, the Commissioner of Commercial Taxes issued Circular bea No.CCT’s Ref.AIII(1)/15/2011 dated 31.01.2010 amending Form ADM 1B “so th single authorization can be issued for both audit and assessment to the offi concerned”. This has, indeed, been put in issue before us as being in deviation from ratio in Balaji Flour Mills. Our attention has been invited to paragraphs 46, 50 and 59 in Balaji Flour M In sum and substance this Bench laid down that authorization for audit of a value ad tax dealer and the authorization to undertake assessment pursuant to such audit are distinct requirements, and the former alone would not suffice for undertaking assessment. The Special Counsel for Commercial Taxes does not seriously dispute legal position having regard to the judgment of the Division Bench referred to supra. In Balaji Flour Mills, placed in such a situation, we set aside the assessm orders and remitted the matters to the respective Audit Officers with a direction to su audit reports as contemplated under Chapter VII of the Value Added Tax Audit Ma for appropriate post audit action. If the jurisdictional Deputy Commissioner iss separate orders authorizing assessment, then only those Officers can under assessment in accordance with law (See paragraphs 59(b) and (c) of Balaji Flour Mi Following the same, this writ petition shall stand disposed of in the follow manner. The assessment order shall stand set aside. The matter shall now go to the A Officer (who passed the order), who shall submit his audit report to the De Commissioner for appropriate action in accordance with the judgment of this Cou Balaji Flour Mills. This exercise shall be completed within a period of eight weeks the date of receipt of a copy of this order. We make it clear that, if the dealer has alre availed the remedy of appeal under Section 31(1) of the Andhra Pradesh Value Ad Tax Act, 2005, the appellate order shall also stand set aside on this ground. There s be no order as to costs. _____________ (V.V.S. RAO ____________________________ (RAMESH RANGANATHAN 19.07.2011 vs [1] (2011) VST 40 150 (A.P)