Heard Mr. S. Dwarakanath, learned Senior Counsel, assisted by Mr. P. Karthik Ramana, learned counsel for the petitioner; Mr. Y. N. Vivekananda, learned Government Pleader, Commercial Tax, for the respondents no. 1 and 2 and Mr. N. Harinath, learned Assistant Solicitor General of India for the respondent no.3.

2. The petitioner has moved to the Court for the following relief:

“….to issue a Writ of Certiorari or any other appropriate writ or order or direction quashing the impugned order in DRC- 07, dated 31.8.2021, for the tax periods 2018-19 and 2019-20 (upto December, 2019) as illegal, contrary to law without jurisdiction in violation of principles of natural justice and the provisions of Section 75(7) and 74(10) of the Central Goods and Services Tax Act, 2017, and pass …..”

3. The petitioner was initially sent a demand notice by the respondent no.1 on 12.03.2021 and objections for the same were submitted on 15.04.2021. It was followed by another notice, dated 24.04.2021, proposing to levy tax as also penalty. In terms of the said notice, personal hearing was given to the petitioner on 21.06.2021 and the petitioner also submitted certain documents before the authority concerned and finally a notice was issued on 19.07.2021 followed by the impugned order imposing tax and 100% penalty.

4. Learned counsel for the petitioner submitted that though in the initial notice dated 24.04.2021, the rate of penalty was shown as 25% and the same was also quantified, in the final order the rate has been enhanced to 100%, which is illegal and impermissible.

5. Further, it was contended that after submission of documents by the petitioner, it was incumbent on the respondent no.1, as per Section 75(4) of the Andhra Pradesh Goods and Services Tax Act, 2017 (for short the ‘Act’) to provide it with an opportunity of personal hearing as an adverse decision was contemplated. It was submitted that in view of the aforesaid position, the assessment order is required to be set aside and the petitioner being given an opportunity to explain the documents submitted to the authority concerned.

6. Learned counsel submitted that under Section 107(11) of the Act, there is no power of the Appellate Authority to remand the matter to the Assessing Authority and thus even if his contention is accepted by the Appellate Authority, he would not be able to do proper justice by remanding the matter to the Assessing Authority.

7. Learned Government Pleader submitted that such contention is erroneous for the reason that the law gives power to the Appellate Authority under Section 107(11) of the Act to pass such order as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against. It was submitted that in the present case, if there was any discrepancy with regard to the actual penalty imposed, which was not in terms of the notice given, the Appellate Authority could very well modify the same at his level.

Further, it was submitted that if at all the contention that the documents upon which some adverse findings have been recorded, is accepted during hearing by the Appellate Authority, to that extent, the decision of the Assessing Authority can be annulled. Thus, it was contended that the Appellate Authority is the forum, which can deal with the present situation and the petitioner is required to go before such authority.

8. Faced with the situation, learned counsel for the petitioner submitted that he is ready to approach the appellate forum. A prayer was made that since the time for filing the statutory appeal is going to expire by the end of the month, since the petitioner was bonafide in approaching this Court, it may be permitted to prefer the appeal by 10.12.2021.

9. Having considered the facts and circumstances of the case and submissions of the learned counsel for the parties, this Writ Petition is disposed of with liberty to move an appeal under Section 107 of the Act. If the same is done by 10.12.2021, in accordance with law, the Appellate Authority shall consider the matter on merits after giving opportunity of hearing to the petitioner, and pass orders thereupon expeditiously.

10. The writ petitioner shall not be forced to deposit the tax in dispute, till filing of the appeal in accordance with law.

11. The original certified copy of the order be returned by Registry to learned counsel for the petitioner under due acknowledgement of the advocate on record for the petitioner by 26.11.2021.

12. Miscellaneous petitions, if any pending also stand disposed of.