THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.3829 and 3937 OF 2011 Dated:06.04.2011 Between: Micron Electricals, 6-2-953, I Floor, Flat No.102, Krishna Plaza, Khairatabad, Hyderabad, represented by its Partner Mr.S.K.Seetharamu .. Petitioner And The Commercial Tax Officer, Afzalgunj, Hyderabad and others .. Respondents THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.3829 and 3937 OF 2011 COMMON ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) The order of assessment dated 19.07.2010, and the order of penalty dated 06.12.2010, are under challenge in these writ petitions filed by the petitioner, a dealer in execution of electrical works contract, who is registered as a dealer under the Andhra Pradesh Value Added Tax Act, (the Act, for brevity). The petitioner was hitherto on the rolls of the Commercial Tax Officer (CTO), Malakpet. His file was subsequently transferred to the Charminar Division, Hyderabad. The petitioner claims to have shifted its office and godown from Musarambagh to Khairatabad, and to have intimated the CTO of the change of address on 27.04.2010. The amended certificate of registration was issued wherein, however, the Musarambagh address was shown as the main place of business, and the Khairatabad as a branch. 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[1] 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, 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. However, in the circumstances, without costs. ______________ (V.V.S. RAO, J) ____________________________ (RAMESH RANGANATHAN, J) 06.04.2011 KH [1] W.P.No.855 of 2008 and batch, Dated 30.12.2010