IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) SATURDAY, THE EIGHTEENTH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 22502 of 2008 Between: M/s. Kesoram Cements Rep. by Mr. O.P. Sharma, Vice President (Commercial) (A Division of Kesoram Industries Ltd.), Basant Nagar, Karimnagar Dist., A.P. ..... PETITIONER AND 1 The Asst. Commissioner (CT) Karimnagar Division Karimnagar. 2 The Appellate Dy. Commissioner (CT) Warangal. 3 The Addl. Commissioner (CT) Legal O/o. The Commissioner of Commercial Taxes, 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 1st respondent in insisting for payment of the balance disputed tax of Rs.7,45,545/- out of the total disputed tax of Rs.14,91,631/- for the tax period 2006-2007 even during the pendency of stay application before the 3rd respondent through his urgent notice dt.26-9-08 and contemplating to take coercive steps for recovery of the balance disputed tax as illegal, arbitrary, high handed and set aside the same and restrain the 1st respondent from taking any coercive steps for recovery of the balance disputed tax of Rs.7,45,545/- out of the total disputed tax of Rs.14,91,631/- for the tax period 2006-2007 in pursuance of his urgent notice Dt.26-9-08, pending disposal of the appeal before the Hon'ble Sales Tax Appellate Tribunal. Counsel for the Petitioner: MR.BHASKAR REDDY VEMIREDDY Counsel for the Respondent No.: GP FOR COMMERCIAL TAX The Court made the following : ORAL ORDER: (per THE HON’BLE MRS. JUSTICE T.MEENA KUMARI) Seeking a writ of mandamus declaring act ion of t he ﬁrst respondent in insist ing for payment of disput ed t ax of Rs.7,45,545/- from out of t he t ot al disput ed t ax of Rs.14,91,631/- for t he period 2006-2007 pending st ay applicat ion before t he t hird respondent t hrough not ice dat ed 26.9.2008 as illegal and arbit rary and t o set aside t he same and rest rain t he ﬁrst respondent from t aking coercive st eps for t he recovery of t he said amount , pending appeal before t he Sales Tax Appellat e Tribunal, t he pet it ioner ﬁled t his writ pet it ion. The pet it ioner is a Limit ed Company carrying on business in manufact ure and sale of cement and is a regist ered dealer on t he rolls of t he ﬁrst respondent herein. The pet it ioner has ﬁled ret urns for t he periods 2006-2007 and upt o July, 2007 under t he A.P.V.A.T. Act claiming Input Tax Credit and also t ransferred cert ain st ocks of cement t o it s branches in ot her St at es during t he t ax period 2006-2007. While so, t he ﬁrst respondent issued show cause not ice dat ed 19.9.2007 proposing t o adopt t he act ual sale value or in it s absence average sale price of t he sales made wit hin t he St at e. The ﬁrst respondent by applying t he average sale value, concluded t hat t here is under declared t ax t o a t une of Rs.14,91,631/- for t he period 2006-2007 and t o a t une of Rs.5,14,188/- for t he period 2007-2008 and also proposed t o levy penalt y and int erest . Though t he pet it ioner ﬁled object ions, t he ﬁrst respondent , however, conﬁrmed t he proposed levy of t ax by order dat ed 1.12.2007 in Form VAT 305 and also conﬁrmed t he proposed penalt y by order dat ed 21.2.2008 and proposed int erest by order dat ed 1.12.2007. Aggrieved t hereby, t he pet it ioner preferred separat e appeals before t he 2nd respondent . Along wit h t he appeal in t he inst ant case, t he pet it ioner also ﬁled applicat ion seeking t o st ay t he recovery of t he disput ed t ax, which was dismissed by order dat ed 28.3.2008. Aggrieved by t he said dismissal, t he pet it ioner ﬁled revision pet it ion before t he t hird respondent , but since pending revision, t he ﬁrst respondent init iat ed coercive st eps t o recover t he disput ed t ax, t he pet it ioner ﬁled separat e Writ Pet it ions, which were disposed of by order dat ed 2.4.2008 grant ing st ay of recovery of t he disput ed t ax on condit ion of t he pet it ioner deposit ing 50% of t he demanded t ax, which is said t o have been complied wit h t he by t he pet it ioner. While so, t he second respondent has dismissed t he appeal ﬁled by t he pet it ioner by order dat ed 30.7.2008. Aggrieved t hereby, t he pet it ioner preferred Appeal before t he Sales Tax Appellat e Tribunal and also ﬁled st ay pet it ion before t he t hird respondent . But in view of t he dismissal of t he Appeal by t he second respondent , t he ﬁrst respondent is insist ing for payment of t he balance disput ed t ax and issued urgent not ice dat ed 26.9.2008 cont emplat ing t o t ake coercive act ion for recovery t hereof. Hence, t his writ pet it ion. It is submit t ed by t he learned counsel for t he pet it ioner t hat t hough several cont ent ions were raised before t he t hird respondent , t he t hird respondent has not grant ed st ay and in view of t he dismissal of t he appeal by t he second respondent , t he ﬁrst respondent has issued urgent not ice dat ed 26.9.2008 cont emplat ing t o t ake coercive st eps for recovery of t he disput ed amount . Heard t he learned counsel for t he pet it ioner and t he learned Special St anding Counsel for Commercial Taxes. In t he fact s and circumst ances of t he case, we are of t he opinion t hat t he writ pet it ion can be disposed of at t he st age of admission direct ing t he pet it ioner t o deposit half of t he demanded t ax amount , as per t he impugned order, wit hin a period of eight weeks from t oday and t he respondent s are direct ed not t o t ake coercive st ep for recovery of t he t ax, pending ﬁnalisat ion of t he appeal by t he Tribunal. It is made clear t hat t he amount paid, if any, shall be given credit t o t he above st ipulat ed sum. With these directions, the writ petition is disposed of. No order as to costs. ____________________ Justice T.Meena Kumari _______________________ Justice Ramesh Ranganathan October 18, 2008 Operative portion by wire at party’s costs //BO// MAS