IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SIXTH 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 : 6873 of 2010 Between: M/s. Sri Jaya Enterprised, 4-8-844, Gowliguda, Hyderabad, Rep.by its Proprietrix Smt. M.Jayalaxmi ..... PETITIONER AND The Commercial Tax Officer, Gowliguda Circle, Hyderabad and another .....RESPONDENTS The Court made the following : ORAL ORDER: (per THE HON’BLE MRS. JUSTICE T.MEENA KUMARI) Seeking a writ of mandamus declaring the order dated 24.2.2010 passed by the second respondent rejecting to stay the collection of disputed tax of Rs.17,54,347/- and penalty of Rs.17,54,347/- for the tax period from 1.4.2005 to 31.3.2007 as illegal, arbitrary and contrary to the provisions of the APVAT Act and consequently direct the respondents not to take coercive steps for recovery of the disputed tax pending appeals before the second respondent, the petitioner filed this writ petition. The petitioner is a proprietary concern engaged in the business of manufacture and sale of Enamel Paint, Distemper, etc. and is a registered dealer on the rolls of the first respondent herein. The first respondent had completed the assessment for the period from 1.4.2005 to 31.3.2007 by orders dated 26.2.2008 adding certain amounts towards the alleged suppressed turnover relying on the report sent by the Regional Vigilance and Enforcement Officer, Vijayawada, pursuant to the inspection conducted on 19.6.2006. The first respondent passed orders levying tax of Rs.17,54,347/- and also levied penalty for an equivalent amount in a single order. That apart, it is stated that the first respondent has issued another notice dated 5.3.2008 levying penalty independently without reference to the penalty already levied in the assessment order dated 26.2.2008. Assailing the said assessment order dated 26.2.2008, the petitioner filed an appeal before the 2nd respondent and also sought stay of collection of the disputed tax and penalty, which was rejected by order dated 27.9.2008. The said order was assailed by the petitioner in W.P. No. 25082 of 2008 and this court by order dated 15.11.2008 granted stay of recovery of the disputed tax and penalty on the condition of the petitioner depositing 50% of the disputed tax, which was complied with by the petitioner. This court further directed the authorities to pass appropriate orders with reference to levy of penalty. While so, the second respondent by order dated 2.4.2009, while setting aside the orders passed by the first respondent has remitted the matter to the first respondent, who passed penalty orders dated 15.11.2008, which is subject matter of appeal before the second respondent. While the matters stood thus, the first respondent by a single proceeding dated 27.11.2009 confirmed the levy of tax and penalty and also passed another order dated 31.12.2009 levying penalty. These two orders were assailed by the petitioner in two separate appeals before the second respondent along with stay petitions which were dismissed by order dated 24.2.2010. Pursuant to the dismissal of the stay applications, the first respondent is insisting for payment of tax and penalty and contemplating to take coercive steps. Hence, the writ petition. It is submitted by the learned counsel for the petitioner that though several legal contentions were raised before the second respondent, the second respondent has refused to grant stay vide the order impugned herein. It is submitted that pursuant to the rejection of stay by the second respondent, the first respondent is contemplating coercive steps for recovery of the disputed tax and penalty. It is further contended by the learned counsel for the petitioner that inspite of this court time and again deprecating the practice of levying tax and penalty by a single order, the first respondent has passed a single order levying penalty and tax. He further submits that by order dated 15.11.2008, this court has stayed the payment of penalty pending disposal of the appeal before the second respondent. Heard the learned counsel for the petitioner and the learned Special Standing Counsel for Commercial Taxes. 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 half of the disputed tax amount, as per the impugned order within a period of six weeks from today and the respondents are directed not to take coercive step for recovery of the balance disputed tax, pending finalisation of the appeal by the appellate authority. It is made clear that the amount paid, if any, shall be given credit to the above stipulated sum. In so far as the penalty proceedings are concerned, recording the submission of the learned counsel for the petitioner that the penalty proceedings were stayed by this court by order dated 15.11.2008, the collection of penalty by the impugned order is stayed pending finalisation of appeal before the Appellate Authority. With these directions, the writ petition is disposed of. No order as to costs. ____________________ Justice T.Meena Kumari __________________________ Justice Nooty Ramamohana Rao March 26, 2010 MAS