IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRD DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE GODA RAGHURAM and THE HON'BLE SRI JUSTICE P.V.SANJAY KUMAR WRIT PETITION NO : 26304 of 2008 Between: M/s. Sri Harsha Motors Private Limited, 10-50-58/1, Raghavendra Towers, Ramnagar, Waltair Main Road, Visakhapatnam, Rep. by its Manager, Sri P. Surendra. ..... PETITIONER AND 1 The Assistant Commissioner (CT) LTU, Visakhapatnam. 2 The Appellate Deputy Commissioner (CT), Visakhapatnam. .....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 a Writ or Order or direction particularly one in the nature of Writ of Mandamus granting stay of collection of the disputed tax of Rs. 3,74,305/- for the assessment years 2004-05 (APGST) arising in pursuance of the stay rejection order passed by the second respondent dated Nil in Appeal No. VSP/096/08-09 pending disposal of the appeal before the second respondent or to pass such other orders. Counsel for the Petitioner:MR.S.KRISHNA MURTHY Counsel for the Respondent No.: GP FOR COMMERCIAL TAX The Court made the following : THE HON'BLE SRI JUSTICE GODA RAGHURAM and THE HON'BLE SRI JUSTICE P.V.SANJAY KUMAR WRIT PETITION NO : 26304 of 2008 ORDER: (Per Hon’ble Sri Justice Goda Raghuram) Against the order of assessment of the Assistant Commissioner (Commercial Taxes), Visakhapatnam, assessing the petitioner under the provisions of the A.P.G.S.T. Act, 1957 (for short ‘the Act’) for the Assessment year 2004-05, the petitioner preferred an appeal to the second respondent and along therewith, it sought stay of collection of the disputed tax of Rs. 3,74,305/-. The grounds of appeal in brief were reiterated in the application for stay and have also been extracted in the impugned order of the 2nd respondent, dated Nil, in proceedings bearing reference No. VSP/096/0809, served on the petitioner on 21.9.2008. The 2nd respondent, however, after recording the caution incorporated in the judgments of the Supreme Court in Empire Industries Ltd., vs. Union of India ([1]) and Assistant Collector of Central Excise, Chandanagar vs. Dunlop India Ltd., ([2]), (to the effect that “in fiscal matters involving taxes, interim orders staying the payment of taxes until final disposal of the matter should not normally be passed as final disposal of matters take an enormously long time and non- realisation of taxes creates an upsetting effect on industry and economic life), dismissed the application of the petitioner for stay pending appeal. It is this order that is challenged in this writ petition. The learned Standing Counsel for the Commercial Tax Department finally states the observation of the Supreme Court in Empire Industries Ltd., and Dunlop India Limited (cited 1 and 2 supra) spell out cautionary principles delineated by the Apex Court to guide the discretion of appellate or revisional authorities and the appropriate Courts hearing tax matters, in the matter of automatically granting stays, which operate to interdict the collection of taxes; that these observations caution that the appropriate appellate or revisional authorities or the Courts should bear in mind that there would be an adverse impact on revenue when stays are granted; and that there should be a due application of mind and appropriate exercise of discretion by the appellate or revisional authorities. It is also the conjoint position at the bar that these observations do not eclipse in toto the discretion of the appellate or revisional authorities to judiciously consider and exercise discretion in the matter of granting of stay on applications duly made, pending appeals or revisions. The mechanical approach of the 2nd respondent in rejecting the petitioner’s application of stay without proper application of mind or exercise of discretion, focussed to the contentions of the petitioner in the appeals presented to the 2nd respondent, signals abdication of the quasi judicial responsibility and discretion and the same cannot be countenanced. On the aforesaid analysis, the order of the 2nd respondent in proceedings bearing Reference No. VSP/096/0809, dated Nil, is quashed. The learned Standing Counsel has submitted that against this order, the petitioner has a revisional remedy to the Joint Commissioner, Commercial Taxes. But, as the order of the 2nd respondent, in our considered view, tantamounts to total abdication of the statutory discretion, we consider it appropriate to quash the order of the 2nd respondent notwithstanding the availability of an alternative statutory remedy. The 2nd respondent will now, on due of application of mind and a rational exercise of discretion, consider the application of the petitioner for grant of stay pending appeal preferred against the order of assessment. It is clarified by us that none of the observations herein constitute an expression by this court on the merits of the petitioner’s application of stay and the 2nd respondent will consider the same, independently and on due exercise of discretion. The writ petition is accordingly disposed of at the stage of admission after hearing the learned counsel for the petitioner and the learned Government Pleader for Commercial Tax. No costs. _____________________ GODA RAGHURAM,J DATE: 3rd December, 2008 ________________​______ P.V. SANJAY KUMAR,J Pnb [1] 162 ITR 846 SC [2] 154 ITR 172