THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION Nos. 22765, 22773, 22785, 22823 and 22921 of 2011 Dated: 07-09-2011 Between M/s Sri Bhaktanjaneya Abhiruchi Foods, rep. by its Proprietor Smt Gunda Subbalaxmi …Petitioner And The Appellate Deputy Commissioner (CT), Visakhapatnam and another …Respondents Common Order: (Per Hon’ble Sri Justice Goda Raghuram) All the writ petitions involve substantially identical issues and therefore with the consent of counsel for the respective parties and at the stage of admission, the writ petitions are heard and disposed of by this common order. Heard Sri K.Durgaprasad, learned counsel for the petitioner and the learned Government Pleader for Commercial Taxes Sri Balaji Varma for the respondents. The facts in W.P.No. 22765 of 2011 are illustrative of and similar in the other writ petitions. The petitioner is a dealer registered on the rolls of the 2nd respondent under the AP VAT Act, 2005 (for short ‘the Act’) and is running a Sweet stall, preparing sweets and selling them to customers in the premises. By several orders, all dated 30-5-2011, the 2nd respondent passed Assessment orders levying the turnover to tax, not under Section 4 (9) (d) of the Act, but under the residuary entry, taxable at 12.5%, on the ground that the provisions of Section 4 (9) (d) of the Act apply only to Food and other articles for human consumption on being served in restaurants, sweet stalls, clubs or any other eating houses and the rate of 4% tax is applicable in respect of sweet stalls, only when sweets or savories or related food materials are served in the premises. The Assessing Authority held that as the sweet stall of the petitioner does not assume the character of a eating house, the rate of 4% is inapplicable; it is an ordinary sale transaction liable to be taxed under Schedule V of the Act with eligibility of ITC on the relevant purchase of material used in the preparation of sweets and savories. Aggrieved thereby, the petitioner preferred appeals before the 1st respondent, which were rejected by orders dated 30-5-2011. In paragraph 9 of the affidavit accompanying the writ petition, the petitioner has clearly and categorically asserted that the 1st respondent-Appellate Authority failed to give any notice or afford a personal hearing to the petitioner and that there was no representation on his behalf before the 1st respondent; that the impugned appellate orders were passed mentioning that one Sri P.V.Murthy, Advocate and authorized representative had represented the petitioner in the appeals; that this is an incorrect fact, as Sri P.V.Murthy, Advocate was neither the authorized representative of the petitioner nor had a Vakalath duly executed in his favour to represent the petitioner. On instructions on the above aspect of failure to afford a reasonable opportunity, the learned Government Pleader states that in fact Sri P.V.Murthy Advocate was not the authorized counsel of the petitioner, as no Vakalath had been executed by the petitioner in favour of Sri P.V.Murthy. In the facts and circumstances, the rejection of the petitioner’s appeals by the several orders of the 1st respondent-Appellate Authority, impugned in the writ petition, cannot be sustained and are accordingly quashed. The 1st respondent shall expeditiously re-hear the appeals after issuing notice to the petitioner and affording an opportunity of personal hearing as well, if so requested. The Appellate Authority shall dispose of the appeals after following due process and in accordance with law. The writ petitions are allowed as above. There shall however be no order as to costs. ______________________ GODA RAGHURAM, J 7th September, 2011 ______________________ N. RAVI SHANKAR, J GRR