IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE ELEVENTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 14828 of 2008 Between: M/s. Sri Durga Cotton Traders, 25-2-22, G.T.Road, Guntur, rep. by its Proprietor P.Vitttal Rao. ..... PETITIONER AND 1 Assistant Commissioner ( C.T.) ( VMU-II), O/o. Deputy Commissioner (C.t.), Guntur Division, Rajaji Bhavan, Jinna Tower Centre, Guntur. 2 Commercial Tax Officer, Patnam Bazar, Guntur, Guntur District. .....RESPONDENTS 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 issue an appropriate writ, order or direction more particularly in the nature of Mandamus declaring that the action of the First Respondent in passing the impugned order of Notification and Demand for Penalty to a VAT dealer Form VAT 203, dated 24.3.2008, for the Tax Period 1.4.2005 to 31-3-2006 ( Penalty ) in TIN No. 28390262825, as without jurisdiction, illegal, violative of the principles of natural justice, violative of Articles 265 and 19(1)(g) of the constitution of India and unsustainable and consequently to set aside the same. Counsel for the Petitioner:MR.G.NARENDRA CHETTY Counsel for the Respondents.: SPL. STANDING COUNSEL FOR COMMERCIAL TAX The Court made the following : THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 14828 of 2008 ORDER: (Per Hon’ble Smt. Justice T. Meena Kumari) This writ petition is filed by the petitioner seeking to declare the action of the First Respondent in passing the impugned order of Notification and Demand for Penalty, dated 24.3.2008, for the Tax Period from 1-4-2005 to 31-3-2006 in TIN.No.28390262825, as illegal and unsustainable, and consequently to set aside the same. It is the case of the petitioner that the first respondent, who is not the assessing authority, issued a show cause notice stating that the petitioner has not reported a turnover of Rs.6,82,419/- and therefore, it is not entitled for input tax credit to an extent of Rs.54,542/- relating to purchases made from M/s. Vyshnavi Cotton Syndicate, Guntur. On that, the petitioner requested the 1st respondent to grant 15 days time to gather the documentary evidence and file its objections. But however, without giving proper opportunity to the petitioner to file its objections, the 1st respondent passed the order of assessment and also issued a notice proposing to impose penalty, on receipt of which, the petitioner requested to grant some more time. But the 1st respondent, without giving proper opportunity to the petitioner, passed the impugned penalty order. Having aggrieved by the same, the present writ petition has been filed. Heard the learned Counsel for the petitioner and the learned Special Standing Counsel for Commercial Tax and perused the material available on record. The learned Counsel for the petitioner vehemently argued that even though a request was made by the petitioner to grant time to file its objections to the show cause notice issued proposing to impose penalty, the 1st respondent, without giving proper opportunity, passed the impugned penalty order and the said action of the 1st respondent amounts to violation of principles of natural justice. On the other hand, the learned Standing Counsel appearing for the respondents contended that the petitioner has not filed objections within the stipulated time and therefore, the order of the 1st respondent needs no interference. In view of the peculiar facts and circumstances of the case and in view of the submission that no opportunity was afforded before passing the impugned order, without expressing any opinion on the merits of the case, We feel it just and proper to remand the matter for passing appropriate orders, subject to certain conditions. Accordingly, the matter is remanded to the 1st respondent for passing fresh orders on condition of the petitioner filing its objections and depositing 25% of the penalty amount, within a period of eight (8) weeks from today. In default, the order impugned herein shall become operative. It is made clear that the penalty amount, if any already paid, shall be given credit to the above stipulated sum. Subject to the above direction, the writ petition is disposed of. No order as to costs. ________________________ Justice T. Meena Kumari ___________________________ Justice Ramesh Ranganathan Date: 11th July, 2008 Nn. THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No:14828 OF 2008 (Order delivered by the Hon’ble Smt. Justice T. Meena Kumari) 11/07/2008