APHC010275562009 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3508] WEDNESDAY, THE TWENTY NINETH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM WRIT PETITION NO: 28460/2009 Between: M/s. V.k.p. Tyres & Retreaders, Srikakulam Dist. ...PETITIONER AND C T O Kasibugga Another and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. KARTHIK RAMANA PUTTAMREDDY Counsel for the Respondent(S): 1. GP FOR COMMERCIAL TAX The Court made the following Order: (per Hon’ble Sri Justice R. Raghunandan Rao) The petitioner, who was registered under the Andhra Pradesh General Sales Tax Act, 1957 (herein referred to as ‘the Act’) had opted for composition under Section 5G of the Act for the assessment year 2003-2004. He opted tax @ 4% on the turnover declared by him. The said returns and payment of tax were accepted by the Assessing Officer. 2. Subsequently, the 2nd respondent, who was the Territorial Deputy Commissioner, issued a show-cause notice, under Section 20(2) of the Act to 2 RRR,J & MRK,J W.P.No.28460 of 2009 show cause why the assessment order passed in favour of the petitioner should not be revised. The 2nd respondent, took the view that the option of paying tax @ 4%, under Section 5G of the APGST Act is not available when any of the raw material or other goods are purchased by the dealer from outside the State. 3. The petitioner having received a show-cause notice, to that effect, filed his objections stated that the said provision of 5G of the APGST Act, has been struck down by a Division Bench of the erstwhile High Court of Andhra Pradesh at Hyderabad in the case of M/s. Maruthi Constructions Vs. Government of A.P. & another 1 and that the disqualification set out under the said provision was not available anymore and the petitioner was entitled to pay under the composition scheme under Section 5G of the Act. 4. The 2nd respondent, after considering these objections, passed an order, dated 02.07.2009, relying upon the judgment of the Hon’ble High Court of Karnataka in the case of New Taj Mahal Cafe Pvt. Ltd. Vs. State of Karnataka that is said to have been delivered on 26.03.2009, in which the Hon’ble High Court of Karnataka is said to have distinguished between the options available to a dealer in a similar provision under the Karnataka Sales Tax Act, 1957. 1 (2007) 10 VST 362 3 RRR,J & MRK,J W.P.No.28460 of 2009 5. Aggrieved by the said order, dated 02.07.2009, passed by the 2nd respondent, the petitioner has approached this Court, by way of the present Writ Petition. 6. The show-cause notice was issued by the 2nd respondent, on the ground that, the petitioner could not have opted for a composition scheme under Section 5G of the Act as he was sourcing raw material from outside the State of Andhra Pradesh and the same barred the petitioner from obtaining the benefit of the composition scheme, on account of the provisions of Sub- Section 4 of Section 5 of the Act. 7. The response of the petitioner that the said provision itself was struck down was sufficient for the 2nd respondent to refrain from taking any further action. However, the 2nd respondent relying upon the judgment of the Hon’ble High Court of Karnataka, which did not deal with this issue, passed the impugned order. 8. In the absence of Section 5G(4), the 2nd respondent, could not have passed the impugned order. It is a clear case for arbitrary action on the part of the 2nd respondent. 9. Accordingly, this Writ Petition is allowed, setting aside the revisional order, dated 02.07.2009, passed by the 2nd respondent. There shall be no order as to costs. 4 RRR,J & MRK,J W.P.No.28460 of 2009 As a sequel, interlocutory applications pending, if any shall stand closed. ________________________ R. RAGHUNANDAN RAO, J ______________________________ MAHESWARA RAO KUNCHEAM, J Date:29.01.2025 KPV 5 RRR,J & MRK,J W.P.No.28460 of 2009 182 THE HONOURABLE SRI JUSTICE R. RAGHUNANDAN RAO THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM WRIT PETITION No:28460 of 2009 (per Hon’ble Sri Justice R. Raghunandan Rao) 29.01.2025 KPV