WP/24177/2004 of M/s. Kirloskar Brothers Limited, Vs Commercial Tax Officer, on 28 December 2004

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

(Special Original Jurisdiction)

TUESDAY, THE TWENTY EIGHTH DAY OF DECEMBERTWO THOUSAND AND FOUR

PRESENT

THE HON'BLE MR JUSTICE M.H.S. ANSARI

and THE HON'BLE MR JUSTICE V.ESHWARAIAH

WRIT PETITION NO : 24177 of 2004

Between:

M/s. Kirloskar Brothers Limited, P.B.No.1580, 310, Corporate Block,Jade Arcade, 126, M.G. Road (Near Paradise Circle), Secunderabad500 003. Rep. by its Manager (Accounts) Sri G. Vijay Giri.

..... PETITIONER

AND

1 Commercial Tax Officer, R.P. Road Circle, Secunderabad.

2 Deputy Commissioner (CT), Secunderabad Division, Hyderabad.

3 Additional Commissioner (CT)(Legal)(FAC), Andhra Pradesh, Hyderabad.

.....RESPONDENT(S)

Petition under Article 226 of the Constitution of India prayingthat in the circumstances stated in the Affidavit filed herein the HighCourt may be pleased to issue a Writ or order or direction particularlyone in the nature of Writ of Mandamus granting stay of collection of the disputed tax of Rs.7,32,964/- for the assessment year 1999-2000arising in pursuance of the stay rejection orders of the thirdrespondent dt. 09-11-2004 passed in CCT's Ref.No.LIII(1)/1783/2004 pending disposal of the appeals before the SalesTax Appellate Tribunal or to pass such further or other orders Counsel for the Petitioner:MR.S.KRISHNA MURTHYCounsel for the Respondent No.: GP FOR COMMERCIAL TAXThe Court made the following :

O R D E R (Per MHSA,J)

Heard learned counsel for respective parties.

2 . Learned Standing Counsel for Commercial Tax made oralsubmissions.

3. What is questioned in the instant writ petition, is the order of 3[rd]respondent rejecting the application filed by the dealer seeking stayof collection of disputed tax of Rs.7,32,964/-, pending disposal of the appeal filed before the learned Sales Tax Appellate Tribunal.

4 . Though several contentions have been raised before us by thelearned counsel for the petitioner, we are not inclined to go into thesame for the reason that against the revisional proceedings,petitioner has filed an appeal before the Sales Tax Appellate Tribunaland thus has availed of the statutory remedy of appeal and can raiseall such contentions before the said authority.

5 . Mr. S.Krishna Murthy learned counsel for the petitioner howeversubmitted that the aforesaid statements on merits were, with the viewthat no tax at all is payable by the petitioner and, therefore, impugnedorder passed by the 3[rd] respondent rejecting the stay applicationwarrants interference by this Court.

6. However, keeping in view the usual orders that are being passedby this Court, we have also taken into consideration the contentionsraised by Mr.S.Krishna Murthy learned counsel for the petitioner, asalso the oral submissions made by the learned Standing Counsel forCommercial Tax.

7. Instead of keeping the writ petition pending on the file of this court,we are inclined to dispose of the same with directions as under:

“If the petitioner deposits 1/3[rd] of the disputed tax, the appeal beforethe learned Sales Tax Appellate Tribunal shall be disposed of on itsown merits without insisting upon the petitioner to pay the balance ofdisputed tax.”

8. It is hereby clarified that the 1/3[rd] tax hereby directed to be paid bythe petitioner, as condition precedent for hearing of the appeal, shall be paid within a period of four weeks from date hereof.

9. It is hereby further clarified that the appeal before the Sales TaxAppellate Tribunal shall be disposed of on its own merits,uninfluenced by any observations made herein.

10. For the aforesaid reasons, the impugned order dated 9.11.2004passed by the 3[rd] respondent is hereby stayed, subject to thepetitioner complying with the directions as to deposit, as above.

11. Writ petition accordingly stands disposed of. No costs.

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M.H.S.ANSARI, J

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DATE:28.12.04 V.ESHWARAIAH, J

Note: CC on priority basis.

To

1 Commercial Tax Officer, R.P. Road Circle, Secunderabad.

2 Deputy Commissioner (CT), Secunderabad Division, Hyderabad.

3 Additional Commissioner (CT)(Legal)(FAC), Andhra Pradesh, Hyderabad.

4. Two C.Cs. to G.P. for Commercial Tax, High Court of A.P., Building, Hyderabad (O.U.T.)

5. Two C.D. copies.