THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.25642 of 2010 November 29, 2010 Between: M/s.S.S.Constructions, represented by its Proprietor, K.V.Srinivasa Rao, S/o.K.Venkatarathnam … Petitioner And The Commissioner of Commercial Tax, Hyderabad And another ... Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.25642 of 2010 ORDER: (per Hon’ble Sri Justice V.V.S.Rao) The petitioner is aggrieved by the final assessment order dated 31.7.2010 for the year 2007-2008 under Andhra Pradesh Tax on Entry of Goods into Local Areas Act, 2001 (2001 Act). Therefore the instant writ petition is filed seeking its validation. Engaged in the business of execution of works contracts, the petitioner purchased Truck Mounted Chain Run Hydraulic Excavator from M/s.L&T Komastu Ltd., Bangalore (hereafter, earth moving machinery). It appears that the Commissioner of Commercial Taxes issued a circular dated 05.5.2005 giving certain clarification with regard to levy of entry tax on earth moving machinery. The Government of Andhra Pradesh also issued notification purportedly under Section 3 of 2001 Act notifying the earth moving machinery as goods for levy of tax at 12.5%. In a challenge before this Court, 2001 Act was invalidated in Sree Rayalaseema Alkaliesm and Allied Chemicals v State of Andhra Pradesh[1]. The effect of the declaration by this Court that the 2001 Act as ultra vires and is that it remains unenforceable. Curiously the second respondent purporting to proceed under the provisions of Andhra Pradesh Tax on Entry of Motor Vehicles into Local Areas Act, 1996 (1996 Act) levied the tax under an invalidated legislation of Andhra Prdesh. Very much dismayed at this, we called for a counter affidavit from the second respondent. In the counter affidavit sworn on 20.11.2010, second respondent seeks to justify the impugned order contending that though the order was passed under 1996 Act by oversight provisions of 2001 Act were referred to. The mistake committed is thus admitted. A perusal of the impugned order would show that the second respondent is not at all clear in his mind as to whether he is proceeding under 1996 Act or 2001 Act. To that extent the submission of the Counsel for petitioner is countenanced. Levying tax under an Act invalidated by the Court is a lapse serious enough warranting the imposition of costs on the Officer who passed such an order recklessly and negligently. We, for the above brief reasons, set aside the impugned assessment order dated 31.7.2010 and for this faux pas direct Mr.Y.Bhuvana Mohan, Commercial Tax Officer, Nacharam Circle, Hyderabad, to personally pay costs of Rs.10,000/- (Rupees Ten thousand only) within a period of three weeks from the date of receipt of a copy of this order on pain of being hauled up for contempt. The said amount shall be paid to the Member Secretary, Andhra Pradesh High Court Legal Services Authority, Hyderabad, within the time stipulated hereinabove and thereafter a memo shall be filed before this Court to that effect. The writ petition is accordingly ordered. ________________ (V.V.S. RAO, J) _______________________________ (RAMESH RANGANATHAN, J) November 29, 2010 YS [1] (2008) 46 APSTJ 1 : (2008) 13 VST 15