IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION NOs.1156, 1172 AND 1192 OF 2014
DATED:22.1.2014
W.P. NO.1156 OF 2014
Between:
M/s. Sudha Restaurant & Bar Door No.4-1-61 Kothapeta Market Cinema Street, Kakinada Rep. by its Proprietor Gangumalla Ramesh … Petitioner And The Union of India Rep. By its Secretary Ministry of Finance New Delhi and others … Respondents THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION NOs.1156, 1172 AND 1192 OF 2014
COMMON ORDER:
(per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) Writ Petition Nos.1156 and 1172 of 2014 were mentioned by the learned counsel for the petitioners for recalling the orders passed in forenoon session dismissing the writ petitions for default and to take up the same along with W.P. No.1192 of 2014. Having heard the learned counsel appearing for the parties, we recall the orders of dismissal passed in the forenoon session and restore the said two writ petitions to file.
We have heard out the all the three writ petitions.
It appears that the issues canvassed in these writ petitions are on identical to those mentioned in Writ Petition Nos.29005 of 2013, which was disposed of by this Court on 31.10.2013 and the operative portion of the order passed therein reads as under:
“It is merely a summons issued to the petitioner alleging a case about evasion of service tax/contravention of provisions of the Finance Act, 1944. It does not specifically say that who is evader and against whom the proceedings have to be initiated.
The learned counsel for the petitioner assumes that since copy of the summons have been issued to his client for production of documents and therefore, it must be presumed that proceedings are intended to be initiated against the petitioner for imposition of tax.
We are unable to accept this presumption and assumption. We have to go by what is there on record. Further Section 14 of the Act very clearly says that “summons can be issued to any person either prospective assessee or a third party”. If we read the language employed in Section 14 of the Act, then we can have a presumption without any doubt that the authorities have only issued summons intending to enquire into alleged evasion. Therefore, the petitioner will appear before the authority concerned to know what is the real intention of the issuing authority vis-à-vis its nexus and if the real intention of the issuing authority is to proceed against the petitioner as a proposed assessee or payee of evaded tax, obviously at that stage, the aforesaid judgment of the Kerala High Court [in South Malabar Trading Company, Vadakkancherry v. Union of India & Others, in W.P. (C) No.15867 of 2011 (G), dt.3.7.2013] would be absolutely relevant. Therefore, we think that at this stage, the petitioner shall go to the Officer concerned, who has issued the summons. The aforesaid judgment of the Kerala High Court shall also be placed by the petitioner before the Officer concerned, who must see the said judgment and take note of it and follow the same without any demur. This exercise shall be completed within a period of four weeks from the date of communication of the order. Till such date, no coercive measures shall be taken by the respondent-authorities”
In view of the judgment rendered by us in Writ Petition No. 29905 of 2013, as the issues on fact and law in the present cases, are identical, these writ petitions are also disposed of in terms of the judgment dt.31.10.2013 rendered in Writ Petition No.29905 of 2013. There will be no order as to costs.
Consequently, miscellaneous petitions pending, if any, shall stand closed.
K.J. SENGUPTA, CJ SANJAY KUMAR, J 22.1.2014 bnr