THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.14993 OF 2011 .06.2011 Between: M/s.Paragon Rubber Industries …. Petitioner AND Commercial Tax Officer, Chittoor-II Circle, Kattamanchi, Chittoor, Chittoor District. … Respondent THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.14993 OF 2011 ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) The petitioner firm, having head office in Kottayam, Kerala, filed the instant writ petition assailing the assessment order cum demand notice, dated 17.06.2010 bearing T.P.No.NRH-ICH-0028217. The petitioner is a manufacturer and seller of rubber hawai chappals and allied products with more than 16 branches in India. They used to effect stock transfers of their products to different branches for the purpose of sale. The petitioner statedly stopped the business from 24.07.2009 as part of business reorganization. Be that as it is, on 30.05.2006, the petitioner dispatched the consignment of 194 boxes (15392 pairs of chappals) worth Rs.4,32,870/- in Goods vehicle No.TN-33-F-2100 under Stock Transfer Invoice No.45/06-07 and 46/06-07 as well as Department Delivery Note Nos.113990 and 113991. The consignment, it is alleged, reached Calcutta branch, which issued ‘F’ Form dated 19.08.2006. According to the petitioner, the Commercial Tax Officer (CTO), Chichira Check Post, West Bengal, endorsed Stock Transfer Invoice and the Assistant Sales Tax Officer, Unified Check Gate, Girisola, Ganjam in Orissa issued transit pass when the consignment crossed the State of Andhra Pradesh. The respondent issued show cause notice dated 18.09.2009 alleging that the vehicle obtained Transit Pass bearing No.0028217, dated 02.06.2006 from the Integrated Check Post (ICP), Naraharipet, under Section 47 of the Andhra Pradesh Value Added Tax Act, 2005 (VAT Act, for brevity); the driver of the vehicle failed to surrender the Transit Pass at the exit check post as mentioned in the Transit Pass and proposed to levy the tax at 12.5% on the value of the goods of Rs.4,32,870/-, after adding 10% gross profit thereto. The respondent proposed to levy Rs.59,520/- as tax thereon. The petitioner allegedly submitted objections on 15.12.2009. The grievance of the petitioner is that, ignoring these objections, the respondent passed the impugned order demanding tax. The counsel for the petitioner submits that the impugned order is void being in violation of principles of natural justice; the respondent ignored incontrovertible evidence to show that the consignment reached Calcutta branch and, as the delay in availing the alternative remedy occurred at the head office of the petitioner situated at Kottayam, the writ petition is not barred. Per contra, Special Counsel for CT opposed the writ petition on the ground of delay and laches as well as availability of alternative remedy. Section 47 of the VAT Act requires the driver or other person in charge of a vehicle, carrying goods coming from any place outside the State and bound for any other place outside the State of Andhra Pradesh, to obtain a transit pass from the officer in charge of the first check post after entry into the State and deliver it to the officer in charge of the last check post before exit from the State of Andhra Pradesh. If the Transit Pass is not delivered at the exit check post, the law presumes that the goods carried by the vehicle after entry into the State have been sold within the State by the owner or the person in charge of the vehicle and, accordingly, the tax shall be assessed and penalties, if any, shall be levied. The presumption however is rebuttable. The proviso to Section 47 casts the burden of proof, that the goods have actually moved out of the State, on the owner or person in charge of the vehicle. There is no dispute about the legal position. The dispute is whether the petitioner produced proof to rebut the presumption under Section 47 of the VAT Act. It is the case of the petitioner that they have sent the reply on 15.12.2009 which was received in the office of the respondent on 23.12.2009 but the same was not considered by the respondent. As rightly submitted by the Special Counsel for CT, if the reply sent by them and the explanation therein was ignored, nothing prevented the petitioner to prefer an appeal before the jurisdictional Appellate Deputy Commissioner within the prescribed time as per Section 31 of the VAT Act. Secondly, when the impugned order was passed on 17.06.2010, they approached this Court by filing the instant writ petition only on 06.06.2011 almost a year after the impugned order was passed. In that view of the matter, this petition is barred by delay and we are not inclined to entertain the same. The writ petition is therefore dismissed without any order as to costs. _______________ (V.V.S.RAO, J) ______________________________ (RAMESH RANGANATHAN, J) .06.2011 Pln