IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETEETH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE MRS. JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO : 22439 of 2009 Between: M/s. Phyto Chem (India) Limited No. 8-3-319/8/11, Yellareddyguda, Hyderabad Represented by its: Managing Director, Sri Y. Nayudamma. ..... PETITIONER V/s. The Commercial Tax Officer, Panjagutta Circle, Panjagutta Division, Hyderabad & 2-Ors .....RESPONDENTS Counsel for the Petitioner : Sri P.N. Sunil Kumar Reddy Counsel for the Respondents: Govt.Pleader for Commercial Tax Sri AV Krishna Koundinya Standing Counsel for Commercial Tax The Division Bench made the following : (Order follows 2nd page) THE HON'BLE MRS. JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO : 22439 of 2009 ORAL ORDER: {Per the Hon’ble Smt.Justice T.Meenakumari} Seeking a writ of mandamus to declare the order dated 25- 9-2009 passed by the Additional Commissioner (CT) (Legal), Hyderabad, in CCT.Ref.L.III(2)/383/2009 in so far as rejecting the stay application as illegal, void, inoperative and to set aside the same and also interdict the first respondent from enforcing the assessment order dated 31-3-2007 for the assessment year 2003-04 and to pass such other suitable order as this court may deems fit and proper in the circumstances of the case. 2. The facts in brief are that the petitioner is a company registered under the Companies Act, 1956 and engaged in the business of manufacture and sale of Pesticides. It is stated that the petitioner filed returns under CST Act and claimed exemption in respect of consignment transfers to branches/depots and sales preceding export under section 5 (3) of the CST Act, for the assessment year 2003-04. Further the petitioner company filed statutory declaration forms under form ‘F’ and ‘H’ as the case may be in respect of a portion of turnover. On 12-3-2007 in response to pre- assessment notice, the petitioner produced a few more declaration forms under Ex.P1 and sought to grant some more time to produce the declarations in respect of the balance turnover. Accordingly, on 16-5-2007 the petitioner produced ‘F’ and ‘H’ forms under Ex.P2 covering a turnover of Rs.1,86,47,734-00 along with a covering letter. It is stated that for the assessment year 2003-04, a demand notice dated 06-9-2007 under Ex.P3 was served on the petitioner-company calling upon to pay tax of Rs.17,07,761-00 but on verification it appears that the assessment was passed under the date 31-3-2007 and the same was served on 10-5-2007 on one Mr.Srinivas, an employee of the petitioner-company, who subsequently left the service and migrated to African country. Therefore, by making an application dated 20-9-2009, the petitioner applied and secured a certified copy of the assessment order dated 31-3-2007 under Ex.P4. Thereafter, the petitioner filed an appeal on 05-11-2007 under Ex.P5 before the second respondent, who is the Appellate Deputy Commissioner (CT) seeking to reckon the date of furnishing of certified copy and prayed to grant stay of collection of tax during the pendency of the appeal. It is pertinent to note that the first respondent by his endorsement dated 21-2-2008 under Ex.P6 returned ‘F’ and ‘H’ forms on the ground that these statutory forms were filed after completion of final assessment and hence rejected. Therefore, the petitioner company is taking necessary steps to re-submit the same with a request to the first respondent to entertain the same under Rule 12 (7) of CST (R & T) Rules, as he got the power and jurisdiction to entertain the same. 3. While things stood thus, the second respondent, by order dated 14-5-2009 under Ex.P7 held that the service of assessment order was effected on authorized person of the petitioner company on 10-5-2007 and observed that limitation had reckoned only from 10-5- 2007 and the appeal was filed on 05-11-2007, which is beyond limitation and therefore rejected the same. Aggrieved thereby, the petitioner company filed second appeal before the Sales Tax Appellate Tribunal on 07-9-2007 under Ex.P8 contending inter alia that the order of the second respondent to the extent of rejecting the petitioner’s appeal as being not maintainable. Further the petitioner company made an application in Form-XII before the Additional Commissioner (CT) (Legal) seeking stay of collection of balance disputed tax for the assessment year 2003-04 under Ex.P9 but the third respondent by his order dated 25-9-2009 held that the service of assessment order on the employee of the petitioner-company was valid under Rule 58 of APGST Rules and rejected the stay application. Now the Commercial Tax authorities are taking coercive steps for recovery of the balance disputed tax by issuing demand notice under Ex.P11 dated 9-10-2008 calling upon the petitioner company to pay the tax in question. Moreover, the first respondent is also threatening to attach bank account of the petitioner for realization of the taxes in question. 4. It is submitted by the learned counsel for the petitioner that though several contentions were raised before the Appellate Deputy Commissioner, it has refused to grant stay vide the order impugned herein. It is submitted that pursuant to the rejection of stay by the Appellate Deputy Commissioner, the respondents are contemplating to take coercive steps for recovery of the disputed tax. 5. Heard the learned counsel for the petitioner and the learned Special Standing Counsel for Commercial Taxes. 6. 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 25% of penalty, as per the impugned order, within a period of four weeks from the date of receipt of a copy of the order but however, the respondents are directed not to take coercive step against the petitioner-company, pending finalisation of the appeal by the Sales Tax Appellate Tribunal. It is made clear that the amount paid, if any, shall be given credit to the above stipulated sum. 7. With these directions, the writ petition is disposed of at the stage of admission. However, in the circumstances there shall be no order as to costs. _____________________ Justice T.Meena Kumari ___________________________________ Justice Nooty Ramamohana Rao March 19, 2010. I s L N B : 1) Furnish Operative portion of the order by wire at party’s cost. 2) Furnish CC of the order in two days. B/o. I s L THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI AND THE HONOURABLE SRI JUSTICE NOORTY RAMAMOHANA RAO WRIT PETITION No. 22439 OF 2009 Judgment of the Division Bench delivered by the Hon'ble Smt. Justice T. Meenakumari) Circulation Entry No. 59 Date: 19-03-2010 COMPUTER No. 43 Court Master: I s L