THE HON’BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION Nos.13849 & 13851 of 2011 COMMON ORDER (Per the Hon’ble Sri Justice A. Gopal Reddy): These two writ petitions are filed to declare the assessment orders passed by the second respondent-Commercial Tax Officer, Jubilee Hills Cirlce, Hyderabad, in Form VAT 305, dated 25.04.2011 and 30.03.2011 respectively, as illegal and arbitrary and consequently to set aside the same or in the alternative to declare Section 4(7)(d) of AP VAT Act, 2005 to the extent it authorises the levy of VAT on amounts received prior to execution of sale deed as ultra vires to Entry 54 of List II of 7th Schedule to the Constitution of India and to strike down the same. Heard the learned counsel for the petitioner and the learned Government Pleader for Revenue. When the matter is taken up for consideration, the learned counsel for both the parties fairly conceded across the Bar that the matters are squarely covered by the judgment of a Division Bench of this Court in W.P.Nos.3829 and 3937 of 2011, dated 06.04.2011 and submitted that these writ petitions can also be disposed of in the light of the directions issued in the said writ petitions, wherein this Court held as under: “Several contentions are raised by Sri S.R.Ashok, learned Senior Standing Counsel appearing on behalf of the petitioner, and Sri P.Balaji Varma, Special Standing Counsel for Commercial Taxes, on the question as to whether there was proper service of the assessment order and the notice prior thereto on the petitioner. We, however, do not propose to examine these aspects as the writ petition must be allowed, and the impugned order has to be set aside, on the short ground that the first respondent was merely authorized to conduct audit, and not assess the petitioner to tax under the Act. The Division Bench of this Court in Balaji Flour Mills v. the Commercial Tax Officer-II, Chittoor, Chittoor District (W.P.No.855 of 2008 and batch, dated 30.12.2010) held: (a) In the result, in the analysis and for the reasons as above, we reject the relief to declare Rule 59(1)(4)(ii)(b) and (d) of the VAT Rules as ultra vires. We also declare that sub- sections (3) and (4) of Section 17 do not suffer from any constitutional infirmity and are valid. We also reject all other prayers for declaring the impugned rule and impugned assessment orders as ultra vires or invalid except to the extent indicated in (b) and (c) below; (b) In view of our holding that the authorisation to audit under Section 43 read with Rule 59(1)(7) by itself does not enable audit officer to undertake assessment, we set aside all the assessment orders and consequential orders, if any under Section 53 of the VAT Act, in all the writ petitions; (c) All the impugned assessment orders shall stand remitted to the respective audit officers who shall submit audit reports as contemplated under Chapter VII of the VAT Audit Manual for appropriate Post Audit Action. If the competent controlling and/or supervising authority like Deputy Commissioner issues separate orders authorizing assessment, it shall be open to such authorizing officer or authority prescribed, as the case may be, to undertake assessment in accordance with law;” Following the said judgment and in terms thereof, the impugned assessment orders are quashed. The writ petitions are, accordingly, allowed and the matters are remanded to the jurisdictional/authorized Commercial Tax Officers who shall issue notice to the petitioner, and assess the petitioner to tax in accordance with law. There shall be no order as to costs. _____________________ A. GOPAL REDDY, J _____________________ G. CHANDRAIAH, J Date: 11.02.2011 va/tsr