IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY NINETH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO WRIT PETITION Nos.23380, 23381, 23519, 23533, 23564, 23611 AND 23687 OF 2010 Between: M/s.Kirby Building Systems India Limited., rep. By P.Veera Reddy, DGM –Indirect Taxation. … Petitioner And Assistant Commissioner (CT), LTU, Charminar Division and three others. … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO WRIT PETITION Nos.23380, 23381, 23519, 23533, 23564, 23611 AND 23687 OF 2010 COMMON ORDER:- (Per Hon’ble Sri Justice A.GOPAL REDDY) All these writ petitions filed for quashing the demand notice, dated 09.08.2010, issued by respondent No.1, consequent to the dismissal of appeals by respondent No.2, dated 30.07.2010, confirming the tax for the respective years, are heard together for admission and disposed of by this common order. The facts in W.P.No.23380 of 2010, if noted, are sufficient for disposal of these writ petitions. The petitioner, who engaged in the business of manufacturing of pre-engineered steel building systems and steel guard rails, is registered as a dealer under the provisions of the Andhra Pradesh Value Added Tax Act, 2005 (for short, “APVAT Act”) and the Central Sales Tax Act, 1956 (for short, “CST Act”) and on the rolls of the Commercial Tax Officer, Mehdipatnam Circle, Hyderabad. Respondent No.1 conducted an audit on the business premises of the petitioner. The records for the year 2005-06 were verified and examined on 15.04.2009 and 23.04.2009 and issued show cause notice, dated 30.04.2009, proposing to levy tax of Rs.13,25,048/-. The petitioner after filing their objections on 30.04.2009 sought for personal hearing and thereafter, respondent No.1 passed orders, dated 08.06.2009, confirming the levy of tax on miscellaneous income viz., cancellation of orders, income received (yard maintenance) and advances written off from customers. Aggrieved by the said order, the petitioner preferred an appeal along with a stay petition, before respondent No.2 on 15.07.2009 and respondent No.2 by order, dated 28.10.2009, rejected the stay petition. On rejection of the stay petition by respondent No.2, respondent No.1 issued a notice, dated 03.11.2009, directing the petitioner to pay the amount within three days. Questioning the demand notice, dated 03.11.2009, issued by respondent No.1, the petitioner filed W.P.Nos.24814, 25916, 26043 and 26044 of 2009. Subsequent to filing of the said writ petitions, the petitioner also preferred revision against the orders of respondent No.2, dated 28.10.2009, rejecting the stay before the Additional Commissioner (CT), Legal, Hyderabad, dated 18.11.2009. The Additional Commissioner reserved the orders on the said revision petition, when the writ petitions were taken up for hearing. This Court was not inclined to entertain the writ petitions and disposed of the same with a direction to the respondents that since the Additional Commissioner (CT) Legal already reserved the orders on the revision, ends of justice would be met if the respondents are directed not to take any coercive steps till orders are passed by the Additional Commissioner on the four revisions and such orders are communicated to the petitioner. Pending the appeals before respondent No.2, the petitioner paid 50% of the disputed tax. Later the Additional Commissioner by order, dated 01.12.2009, rejected the stay for the period 2005-06 to 2008-09. Meanwhile, respondent No.2 disposed of the main appeals, by a final order, dated 30.07.2010. Consequent to the same, the impugned recovery notices, dated 09.08.2010 were issued, which is subject matter of challenge in the present writ petitions. Questioning the same, the petitioner earlier filed W.P.Nos.21224, 21060, 21126, 21139, 21104, 21059 and 21475 of 2010. This Court by order, dated 31.08.2010, dismissed the writ petitions as withdrawn with a liberty to file appeal under Section 33(1) of the APVAT Act, before the Sales Tax Appellate Tribunal and to approach the Additional/Joint Commissioner or the appropriate forum for stay, pending the appeal. On withdrawal of the writ petitions, the petitioner filed appeal before the Sales Tax Appellate Tribunal against the orders, dated 30.07.2010, which are now pending. Since there is no provision for granting stay by the Sales Tax Appellate Tribunal, the petitioner filed the present writ petitions under Article 226 to quash the demand notice, dated 09.08.2010. Suffice it to say, mere pendency of the statutory appeals before the statutory authority, will not amount to stay the demand notice unless specific stay is granted. Petitioner, who has already filed the writ petitions and obtained leave to file an appeal before the Appellate Tribunal i.e., Sales Tax Appellate tribunal and also reserved its right to approach the Additional/Joint Commissioner or the appropriate forum for stay, has not approached the Additional/Joint Commissioner for stay and straight away filed the present writ petitions questioning the demand notice. In para 4 of the affidavit filed in support of the writ petition, it is stated that the petitioner challenged the recovery notice, dated 09.08.2010, issued by respondent No.1 consequent to the order, dated 30.07.2010, in dismissing the appeals by respondent No.2. Sri S.Ramachandra Rao, learned counsel for the petitioner contends that miscellaneous income cannot be treated as other income as per the reply, dated 01.06.2009 submitted to the show cause notice, dated 30.04.2009. He further contends that since the petitioner has already paid 50% of the disputed tax pending the appeal before respondent No.2, which is evident from the impugned notice, dated 09.08.2010 and since no stay has been granted by the Additional Commissioner (CT) Legal or the Joint Commissioner (CT) Legal, the continuation of the same, pending the appeal under Rule 40 does not arise. Therefore, the petitioner has no other alternative remedy except to approach this Court by way of the present writ petition for quashing the impugned demand notice. We do not see any merit in the contentions advanced by the learned counsel for the petitioner since the Additional Commissioner, Commercial Tax entertained the revision pending the appeals before respondent No.2 and this court also while disposing of the writ petitions has not stayed the demand notice, except directing the respondents not to take coercive steps for recovery pursuant to the demand notice, till the disposal of the revisions. When the appeals filed by the petitioner were dismissed by respondent No.2, the petitioner challenged the impugned demand notice in W.P.Nos.21224, 21060, 21126, 21139, 21104, 21059 and 21475 of 2010, which were also dismissed permitting him to avail the remedy of appeal and also granted liberty to approach the Appellate Authority/Joint Commissioner for stay. On dismissal of the writ petitions, the petitioner filed appeals before the Sales Tax Appellate Tribunal and filed the present writ petitions challenging the very same impugned notice, which was earlier challenged in the above writ petitions. We do not see any changed circumstances, on dismissal of the writ petitions filed earlier except filing of appeals and change of Advocates and Bench, to take a different view from the orders passed by this Court in the above writ petitions. The petitioner in a hunt of forum of his choice adopted a dubious method to avoid the Bench, which earlier passed the above orders hearing the tax matters as per Roster, hence, he is not entitled to any discretionary relief of this Court in exercise of equitable jurisdiction under Article 226 of the Constitution. The Writ Petitions are accordingly dismissed at the stage of admission. There shall be no order as to costs. __________________ A.GOPAL REDDY, J ________________ RAJA ELANGO, J 29th September 2010 LMV