IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTIETH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE THE CHIEF JUSTICE SRI ANIL R. DAVE AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 14941 of 2009 Between: M/s. Yum Restaurants (India) Pvt. Ltd., Reptd. by its Business Support Manager, Mr. Nagesh Shetty 2-4-59 to 62 and 2-4-91 to 92, M.G. Road, Secunderabad. ..... PETITIONER AND 1 The Commercial Tax Officer, M.G. Road Circle Hyderabad. 2 The Assistant Commissioner (CT), LTU. Begumpet Division Hyderabad. 3 The Appellate Deputy Commissioner (CT), Punjagutta 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, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 3rd respondent in rejecting the stay application through the impugned order dated 23-06-2009 year 2005-06 to 2007-08 on untenable grounds without considering the contentions raised by the petitioner as illegal, arbitrary, high handed and set aside the same and consequently restrain the 1st respondent from taking any steps for recovery of the disputed tax in pursuance of the impugned urgent Notice dated 13-07-2009 pending disposal of the appeal before the 3rd respondent and declare that the petitioner is entitled for claim of input tax credit in toto and also declare that input tax credit cannot be restricted on the ground that some of the commodities are taxable at lesser rate than the rate at which the suppliers have charged the petitioner and also declare that no tax can be levied on the turnover of franchise fees since on the said turnover the petitioner is already paying service tax as it amounts to service. Counsel for the Petitioner: MR.BHASKAR REDDY VEMIREDDY Counsel for the Respondents: MR. A. V. KRISHNA KOUNDINYA (SPECIAL STANDING COUNSEL FOR COMMERCIAL TAXES) The Court made the following : ORDER: (per the Hon’ble the Chief Justice Sri Anil R. Dave) Rule. Service of notice is waived by Sri A.V. Krishna Koundinya, learned Standing Counsel appearing for the respondents. At the request of the learned Advocates, the petition is taken up for final hearing today. In this petition, the petitioner has challenged the order dt.23.6.2009 passed by respondent No.3 – Appellate Deputy Commissioner whereby the petitioner’s application for stay of recovery of the amount in question during the pendency of the appeal has been rejected. The grievance, which the petitioner has made in the petition, is that the objections, which had been filed before the Appellate Deputy Commissioner, who heard the stay application, had not been considered at all and there is no reference to the objections in the impugned order passed by the authority. Upon hearing the learned Advocates and upon perusal of the record, especially in view of the admission of the fact by the learned Standing Counsel appearing for the respondents that the objections had been filed before the Appellate Deputy Commissioner (CT), in our opinion, the objections filed by the petitioner ought to have been considered by the Appellate Deputy Commissioner while disposing of the stay application. In view of the fact that the objections have not been considered at all, we quash and set aside the impugned order so as to enable respondent No.3 – Appellate Deputy Commissioner to consider the objections of the petitioner and pass a reasoned order. Learned Advocates for the parties have agreed that respondent No.3 - Appellate Deputy Commissioner shall hear the petitioner’s representative on 10.8.2009 and after considering the submissions made at the time of hearing and the objections already filed by the petitioner, appropriate reasoned order shall be passed by respondent No.3. Till respondent No.3 decides the application and communicates the order to the petitioner, no coercive steps shall be taken for recovery of the amount of tax from the petitioner. In view of the above order, the petition is disposed of as allowed with no order as to costs. _____________ ANIL R. DAVE, CJ ______________________ RAMESH RANGANATHAN, J 30.7.2009 bnr Note: C.C. in two days. (B.O) bnr