The Supreme Court on Wednesday held that the High Court under writ jurisdiction cannot entertain the assessment order passed by the competent authority and statutory remedy of appeal against that order stood foreclosed by the law of limitation.
The bench of Justice A.M. Khanwilkar & Justice Dinesh Maheshwari allowed the appeal the plea of the appellant (Assistant Commissioner (CT) LTU, Kakinada) that the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India cannot entertain an assessment order on the sole ground that the statutory remedy of appeal against the order stood foreclosed by the law of limitation.
Brief facts of the case are that the Glaxo Smith Kline Consumer Health Care (respondent) is engaged in the business of manufacturing and sale of Horlicks, Boost, Biscuits, Ghee, Ayurvedic Medicines etc. The Assistant Commissioner had called upon the respondent to produce books of accounts for the assessment year 2013¬14 for finalization of assessment under the 1956 Act. The authorized representative of the respondent produced declaration in Form “F” in support of its claim that certain transactions are inter State transfers. The information and declaration furnished by the respondent was duly verified and after giving personal hearing final assessment order came to be passed by the Assistant Commissioner on 21.6.2017, raising demand of Rs.76,73,197/¬ (Rupees seventy six lakhs seventy three thousand one hundred ninety seven only).
Thereafter the respondent filed an application under Rule 60 of the Andhra Pradesh Value Added Tax Rules, 2005 , highlighting the error made in raising the demand based on incorrect turnover. This application was filed only on 8.5.2018, which came to be rejected by the Assistant Commissioner vide order dated 11.5.2018. Aggrieved by the decision dated 11.5.2018, the respondent filed an appeal before the Appellate Deputy Commissioner of Commercial Taxes, Vijayawada on 28.5.2018, which came to be rejected on 17.8.2018. Thereafter the appeal filed by the respondent on 24.9.2018 against the assessment order dated 21.6.2017, the same was dismissed on 25.10.2018 being barred by limitation and also because no sufficient cause was made out, thereafter the respondent was advised to approached the High Court by way of writ jurisdiction under Article 226. The High Court allowed the writ petition directed the Assistant Commissioner for reconsideration of the matter afresh after giving personal hearing to the respondent to explain the discrepancies.
Thereafter the Assistant commissioner being aggrieved challenged the judgment of High Court by way of SLP which is converted into appeal. The Supreme Court observed that “ the respondent having failed to assail the order passed by the appellate authority, dated 25.10.2018 rejecting the application for condonation of delay, the assessment order passed by the Assistant Commissioner, dated 21.6.2017 stood merged, need not detain us in view of the exposition of this Court in “Raja Mechanical Company Private Limited vs. Commissioner of Central Excise, Delhi¬I”. It is well settled that rejection of delay application by the appellate forum does not entail in merger of the assessment order with that order. Therefore, the High Court ought not to have entertained the subject writ petition filed by the respondent herein.”
-India Legal Bureau