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 : 25838 of 2008 Between: M/s. Sri Sarvaraya Sugars Limited Rep. by its Chief Executive, Mr. P. Trimurtulu Chelluru - 533 261, Rayavaram Mandal, East Godavari Dist. ..... PETITIONER AND 1 The Assistant Commissioner (CT) LTU. Kakinada East Godavari Dist. 2 The Appellate Deputy Commissioner (CT) Visakhapatnam. 3 The State of Andhra Pradesh Rep. by its Principal Secretary to Government Revenue Department, Secretariat, Hyderabad. .....RESPONDENT(S) 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 of Mandamus or any other appropriate writ or order or direction declaring the action of the 1st Respondent in levying tax under Andhra Pradesh Tax on Entry of Goods into Local Areas Act, 2001 through the impugned order dated 29-10-2008 and the consequential demand notice issued in Form D2 dated 29-10-2008, as illegal, arbitrary and without authority of law and contrary to Article 265 of the Constitution of India since Section 3 which is the charging section under the Andhra Pradesh Tax on Entry of Goods into Local Areas Act, 2001 has been struck down by this Hon'ble High Court as ultra vires to Act 301 of the Constitution of India in the judgment reported in 13 VST Page 15 in the case of Sri Rayalaseema Alkalies & Allied Chemicals Limited case and set aside the same and restrain the 1st Respondent from recovering the balance disputed entry tax of Rs.2,16,391/- for the assessment year 2004-05 under the Andhra Pradesh Tax on Entry of Goods into Local Areas Act, 2001. Counsel for the Petitioner:MR.S.DWARAKANATH Counsel for the Respondents: 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 : 25838 of 2008 ORDER: (Per Hon’ble Sri Justice Goda Raghuram) Heard the learned counsel for the petitioner, the learned Special Government Pleader for Commercial Tax and the learned Special Standing Counsel for Commercial Taxes. Section 3 of the Andhra Pradesh Tax on Entry of Goods into Local Areas Act, 2001, (for short ‘the Act’), which provides for levy and collection of tax on the entry of notified goods into a local area for sale, consumption or use therein, has been invalidated by the judgment of this Court in SRI RAYALASEEMA ALKALIES & ALLIED CHEMICALS LIMITED vs. STATE OF ANDHRA PRADESH ([1]). This is the undisputed legal position. Against the above judgment, the State has pursued Special Leave Petitions, being S.L.P.(Civil) Nos. 8053 to 8077 of 2008. By an order of the Apex Court, dated 9.5.2008, stay of refund was ordered. There is however no suspension of the judgment of this Court. In the circumstances, the provisions of Section 3 of the Act are not operational in view of the declaration of invalidity by this Court. The 1st Respondent has passed an order dated 29.10.2008 (impugned herein), calling upon the petitioner to remit the balance tax of Rs.2,60,391/- under the provisions of the Act. The petitioner assails this order on the ground that there is no extant legislative authority for the demand. The learned Special Standing Counsel for Commercial Taxes concedes the legal position that there is no extant legislative authority for the impugned order of demand dated 29.10.2008, though, it is stated that Special Leave Petitions preferred by the State are pending consideration by the Supreme Court, as already recorded above. In the circumstances above, the impugned order of demand is unsustainable. Qua Article 265 of the Constitution, there cannot be taxation without legislative authority. The provisions of the Act having suffered plenary eclipse in view of the declaration of invalidity by this Court by the judgment in Rayalaseema Alkalies Limited’s case,(cited supra), there is no operative legislative authority for the impugned demand of tax. The order of demand is accordingly quashed. The respondents are however at liberty to act in accordance with the result of the S.L.Ps., pending before the Supreme Court against the judgment of this Court in Rayalaseema Alkalies Limited’s case cited (cited supra). The writ petition is accordingly disposed of at the stage of admission after hearing the learned counsel for the petitioner, the learned Special Government Pleader for Commercial Tax and the learned Special Standing Counsel for Commercial Taxes. No costs. ____________________ GODA RAGHURAM,J DATE: 3rd December, 2008 ________________​______ P.V. SANJAY KUMAR,J Pnb [1] 13 VST PAGE 15