M/s. Sai Jaya Enterprises, V. The Commercial Tax Officer,

WP/25082/2008

AI Insights

M/s. Sai Jaya Enterprises, represented by its proprietor Smt. M. Jayalaxmi, filed a writ petition against the Commercial Tax Officer and the Appellate Deputy Commissioner (CT) challenging the refusal to stay the recovery of disputed tax and penalty under the AP VAT Act, 2005. The petitioner argued that the appellate authority should have granted a stay considering the substantial questions of law involved in the appeal. The court, after hearing both parties, decided to grant an interim stay on the recovery actions, imposing conditions on the petitioner regarding the deposit of a portion of the disputed tax.

• Counselvise Citation: [2008] 140 COUNSELVISE.COM (IT) 736022 (HC-ANDHRA_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 15-11-2008
• Assessment Year: misc
• Laws Referred To: AP VAT Act, 2005
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: GP FOR COMMERCIAL TAX
• Assessee Lawyers: BHASKAR VEMIREDDY
• Keywords: Disputed tax; Interim Stay; Penalty; Stay of recovery; Writ of Mandamus
• Section: 226

Judgement Text

" IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) SATURDAY, THE FIFTEENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.PRAKASH RAO and THE HON'BLE MR JUSTICE R. KANTHA RAO WRIT PETITION NO : 25082 of 2008 Between: M/s. Sai Jaya Enterprises, 4-8-844, Gowliguda, Hyderabad, Rep. by its Proprietor Smt. M. Jayalaxmi. ..... PETITIONER AND 1 The Commercial Tax Officer, Gowliguda Circle, Hyderabad. 2 The Appellate Deputy Commissioner (CT), Secunderabad Division, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ or order or direction more particularly one in the nature of writ of mandamus declaring the action of the 2nd respondent in refusing to grant stay of recovery of disputed tax of Rs.17,54,347/- and penalty of Rs.17,54,347/- for the tax period 01-04-2005 to 31-03-2007 under the AP VAT Act, 2005 through the impugned proceedings dated 27-09-2008 and the consequential action of the 1st respondent in issuing the impugned notice dated 03-10-2008 demanding the disputed tax and penalty and contemplating to take coercive steps for recovery of the disputed demands as illegal, arbitrary and set aside the same and restrain the 1st respondent from taking any coercive steps for recovery of disputed tax of Rs.17,54,347/- and penalty of Rs.17,54,347/- for the tax period 01-04-2005 to 31-03- 2007 under the AP VAT, 2005 pending disposal of the appeal by the 2nd respondent and to pass appropriate orders. Counsel for the Petitioner: MR.BHASKAR REDDY VEMIREDDY Counsel for the Respondents: GP FOR COMMERCIAL TAX The Court made the following : HON'BLE SRI JUSTICE B.PRAKASH RAO and HON'BLE SRI JUSTICE R. KANTHA RAO WRIT PETITION No.25082 of 2008 ORDER: (per Hon’ble Sri Justice B.Prakash Rao) Heard Sri V.Bhaskar Reddy, learned counsel appearing for the petitioner and Sri A.V.Krishna Koundinya, Special Standing Counsel for the Commercial Tax, appearing for the respondents and at their request, the main appeal itself is taken up for disposal at the stage of admission. The petitioner, who is a proprietary concern and assessee for income tax, filed this writ petition, inter alia, aggrieved by the action of the second respondent herein, who is the appellate authority, in refusing to grant stay of recovery of the disputed tax and penalty for the tax period from 01.04.2005 and 31.03.2007 under the A.P.VAT Act, 2005. It appears, the case of the petitioner is to the effect that having regard to the substantial questions of law involved in the appeal, filed before the second respondent, which have to be gone into on merits, the appellate authority, who is the second respondent, ought to have granted stay. Heard learned counsel appearing on either side and perused the material available on record. Since the main appeal filed before the second respondent-appellate authority is yet to be taken into consideration, we refrain from going into the questions raised by the learned counsel appearing on either side, across the bar. However, prima facie, we are of the view that the appellate authority-the second respondent ought to have granted stay by imposing certain conditions. As regards the penalty amount, it is submitted by learned counsel for the petitioner that though the order under challenge in the appeal before the second respondent-appellate authority states that a penalty notice is issued separately, however, under the very same order, penalty is quantified and was demanded, without their being issuance of any separate notice and separate order, as such. In view of the aforesaid circumstances, we are of the view that there shall be interim stay of all further proceedings, subject to condition that the petitioner deposits ½ of the disputed tax within a period of eight weeks from today. We also make it clear, having regard to the facts and circumstances of the case, that there shall be interim stay as regards the payment of penalty pending disposal of the appeal before the second respondent-appellate authority. However, it is open for the authorities to proceed with the finalization of the penalty proceedings. Subject to the above, the writ petition is disposed of. No costs. __________________ B.PRAKASH RAO, J ___________________ R.KANTHA RAO, J 15.11.2008 Note: Issue wire at party’s costs. B/o dr ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Commercial Tax Officer, Gowliguda Circle, Hyderabad. 2 The Appellate Deputy Commissioner (CT), Secunderabad Division, Hyderabad. 3 2CD copies "