IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD. THURSDAY, THE EIGHTH DAY OF APRIL TWO THOUSAND AND TEN P R E S E N T: THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI AND THE HONOURABLE SRI JUSTICE NOOTY RAMA MOHAN RAO WRIT PETITION No. 7 7 3 0 OF 2010 Between : M/s. GSL Coal Sales Pvt.Limited Plot No.142-C, Innovation Apartments, PG Road, Secunderabad-500 003. … Petitioner Represented by Mr.Gurpeet Singh Lamba, Director. V/ s. The Commercial Tax Officer, (CT) Begumpet Circle, Hyderabad & 5-Ors. … Respondents Counsel for the Petitioner: M/s. Lakshmi Kumaran & Sridharan Counsel for the Respondents: GOVT.PLEADER FOR COMMERCIAL TAX THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI AND THE HONOURABLE SRI JUSTICE NOOTY RAMA MOHAN RAO WRIT PETITION No. 7730 OF 2010 O R D E R : (Per the Hon’ble Smt.Justice T.Meenakumari) This writ petition is filed seeking certiorari quashing the demand notice dated 12-3-2010 issued by the first respondent demanding to pay an amount of Rs.7,21,369-00 and the Order in TA.No. 474 of 2009 dated 30- 11-2009 passed by the second respondent, as illegal, arbitrary, without jurisdiction and consequently to restrain the respondents from recovering a sum of Rs.5,30,575/- from the petitioner towards tax for the year 2001-02 pending disposal of the tax revision in T.Rev.C.No.1415 of 2010 by this court and to pass such other suitable orders as this court may deems fit and proper in the circumstances of the case. 2. The facts of the case are that the petitioner is engaged in the business of providing transportation solutions to various types of products and has its possession a fleet of transit mixers used for transporting the ready mix concrete to its customers. It is stated that the petitioner entered in to an agreement on 01-10-2002 with M/s. Grasim Industries Limited, who is the manufacturer of Ready Mix Concretes and the petitioner agreed to supply dedicated fleet of 5 vehicles to transport ready mix concrete from the principal employer’s plant to various customers in the city of Hyderabad. 3. Challenging the demand notice dated 12-3-2009 issued by the first respondent demanding to pay an amount of Rs.5,30,575/- within seven days, the petitioner filed the present writ petition. It is stated that the petitioner also challenged the order in TA.No. 473 of 2009, dated 30- 11-2009 passed by the second respondent. Further the petitioner received a show cause notice dated 31-10-2005 proposing to levy tax of Rs.5,92,681/- on the turn over of Rs.74,08,507/- on the ground that the petitioner transferred the right to use transit mixers to M/s. Grasim Industries Limited and the amounts received thereon are liable to tax under section 5-E of APGST Act. Pursuant to the same, the petitioner filed written objections on 11-08-2005 stating that the amounts received from their customers were only transport charges and not lease rentals for leasing the transit mixers. 4. The Ld.Assistant Commissioner, Begumpet Division through order dated 31-8-2006 completed the assessment for the year 2002-03 and demanded the tax of Rs.5,92,681/-. Aggrieved thereby, the petitioner filed an appeal dated 27-09-2006 before the Appellate Deputy Commissioner, (CT), Panjagutta, Hyderabad and thereupon the Appellate Deputy Commissioner granted personal hearing on 02-5-2007 and 05-05-2007 to the petitioner and after hearing the submissions, the Appellate Deputy Commissioner allowed the appeal through order dated 08-5-2007 passed in Appeal Order No.B/102/2006-07 accepting the contentions of the petitioners that there was no leasing of the transit mixer vehicles and held that as per the agreement the assessee entered into with their customers, there was no condition to deliver the transit mixer vehicles to the customers and without delivery there would be no transfer of right to use goods. 5. It is stated that the Ld. Additional Commissioner (CT) Legal called for the records and the order passed by the Ld.Appellate Deputy Commissioner suo moto under section 20 of APGST Act, 1957 and set aside the said orders holding that the order passed is erroneous and prejudicial to the interests of revenue and proposed to set aside along with the consequential order passed if any and restored the original assessment order by invoking the revisional jurisdiction vested in him under section 20 (2) of APGST Act, 1957. Thereafter a show cause notice dated 02-9-2008 was issued to the petitioner and pursuant to which the petitioner filed objections on 25-11-2008 and appeared for personal hearing on 28-11- 2008. After hearing the objections of the petitioner, the Ld. Additional Commissioner set aside the orders of the Ld. Appellate Deputy Commissioner along with the consequential orders and restored the original assessment orders dated 31-8-2006 passed by the Ld. Asst.Commissioner. It is stated that the Ld.Asst.Commissioner held that the petitioner transferred the right to use transit mixers to M/s. Grasim Industries Limited and the amounts received thereon are liable to tax under section 5-E of APGST Act, 1957. 6. Aggrieved by the order dated 29-11-2008 passed by the second respondent, the petitioner filed an appeal before the Sales Tax Appellate Tribunal on 05-3-2009. It is stated that the appeal filed before the Sales Tax Appellate Tribunal was posted for hearing on 03-11-2009 and thereafter the petitioner made submissions and produced evidence in support of its contentions with supporting case law. The Tribunal reserved the orders and after receiving synopsis of the case in support of arguments, the Tribunal through order dated 30-11-2009 dismissed the appeal filed by the petitioner upholding the revision order dated 29-11-2008 passed by the Ld. Addl. Commissioner (CT) (Legal), Hyderabad for the year 2002-03. Hence, the writ petition. 5. It is submitted by the learned counsel for the petitioner that though several contentions were raised before the second and third respondents, neither the second respondent nor the third respondent considered the contentions and supporting case laws but dismissed the appeal through proceedings dated 30-11-2009. It is submitted that pursuant to the dismissing of appeal by the third respondent, the first respondent is contemplating to take coercive steps for recovery of the of Rs.7,21,360-00 which was demanded through notice dated 12-03-2010. 6. Heard the learned counsel for the petitioner and the learned Special Standing Counsel for Commercial Taxes. 7. In the facts and circumstances of the case, we are of the opinion that the writ petition can be disposed of at the stage of admission directing the petitioner to deposit half of the demanded amount under the demand notice dated 12-3-2010 within a period of six weeks from the date of receipt of a copy of the order, and the first respondent is directed not to take coercive step for collection/recovery of Rs.5,92,681/-. 8. With the above direction, the writ petition is disposed off at the stage of admission. No order as to costs. _____________________ JUSTICE T. MEENA KUMARI ____________________________ JUSTICE NOOTY RAMA MOHAN RAO 08-IV-2009. I s L THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI AND THE HONOURABLE SRI JUSTICE NOOTY RAMA MOHAN RAO WRIT PETITION No. 7 7 3 0 OF 2010 ORDER of the Division Bench delivered by the Hon’ble Smt.Justice T.Meenakumari Circulation Entry No. 5 9 Computer No.43 Court Master: I s L Date: 08-IV-2010