WP/28797/2008 of M/s. Srinivasa Cotton Company, Vs Commercial Tax Officer-II, on 31 December 2008

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

(Special Original Jurisdiction)

WEDNESDAY, THE THIRTY FIRST DAY OF DECEMBERTWO THOUSAND AND EIGHT

PRESENTTHE HON'BLE MR JUSTICE GODA RAGHURAMAND

THE HON'BLE MR JUSTICE SANJAY KUMAR

WRIT PETITION No: 28797 of 2008

BETWEEN:

M/s. Srinivasa Cotton Company, D.No.15/712, R.F. Road, Tadipatri,Anantapur District, Rep. By its Partnet N. Krishna Murthy.

AND

... PETITIONER

Commercial Tax Officer – II and two others.

...RESPONDENTS

Petition under Article 226 of the Constitution of India praying that inthe circumstances stated in the Affidavit filed herein the High Court may bepleased to issue an appropriate writ, order or direction more particularly inthe nature of mandamus declaring the action of the 1[st] respondent in issuinggarnishee notice in Form-VAT 206, dated 24.12.2008 to the 3[rd] respondentas arbitrary, unwarranted and illegal and consequently grant stay ofcollection of the disputed tax of RS.1,42,900/- for the tax period April 2005 toJune 2007 under the CST Act pending disposal of the appeal before the 2[nd]respondent and pass such other order or orders.

Counsel for the Petitioner: MR.G.NARENDRA CHETTY

Counsel for the Respondents: GP FOR COMMERCIAL TAX

The Court made the following:

ORDER:(per Hon’ble Sri Justice Goda Raghuram)

The first respondent assessing authority by order dated 24.12.2008

(impugned herein) addressed the third respondent to make payments fromthe petitioner’s account with the third respondent of an amount ofRs.1,42,900/- determined as the petitioner’s tax liability under the AndhraPradesh Value Added Tax Act, 2005.

2. Against the substantive order of assessment dated 18.09.2008 thepetitioner preferred an appeal before the second respondent.

By communication dated 15.12.2008, on the petitioner’s appeal No.33/08-09,the second respondent intimated to the petitioner that the appeal (includingthe application for interim relief therein) is posted for hearing on 23.12.2008. Itis the petitioner’s specific case that the hearing notice issued by the secondrespondent dated 15.12.2008 has been received by the petitioner on27.12.2008.

Even before the petitioner’s application for interim relief in the appeal hasbeen considered by the second respondent, the first respondent has passedthe garnishee order dated 24.12.2008, which is the specific grievance in thewrit petition.

3. It is fairly stated by the learned Special Standing Counsel forCommercial Taxes that in the light of the judgment of this Court in ANAB-E-SAHI WINES & DISTILLERIES PVT. LTD v. APPELLATE DEPUTY

COMMISSIONER, SECUNDERABAD[[1]]it is not proper for the assessingauthority to issue a garnishee order even while the petitioner’s/assessee’sapplication for interim relief is pending consideration by the appellateauthority. On instructions, the learned Special Standing Counsel states thatthe stay application of the petitioner has not been disposed of, is pendingconsideration before the second respondent and is posted to 05.01.2009.

4. In the facts and circumstances of the case, this Court considers itappropriate to set aside the garnishee notice addressed by the firstrespondent in Form-VAT 206 to the third respondent by communication dated 24.12.2008 for payment of outstanding amount under Section 29 of theAndhra Pradesh Value Added Tax Act, 2005.

The first respondent shall, however, be at liberty to pursue appropriate stepsdepending upon the decision of the second respondent in the petitioner’sapplication for interim relief against the order of assessment dated18.09.2008, which is the subject matter of the appeal No.33/08-09.

The writ petition is accordingly disposed of. There shall be no order asto costs.

_________________

GODA RAGHURAM, J

December 31, 2008Note: Issue operative portion of the order by wire at party’s costs. (B/o) DSK

_________________

SANJAY KUMAR, J

Conclusion

[1](1995) 21 APSTJ 98