IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIFTEENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 20016 of 2008 Between: M/s. Hotel Raghavendra Bhavan (Udipi) Survey Nio. 190/2D, Ponnamakulapalli Village, Rep. by its Proprietor Mr. R. Muniratnam Naidu ..... PETITIONER AND 1 The Additional Commissioner (CT) Legal Office of the Commissioner of Commercial Taxes, M.J. Road, Hyderabad. 2 The Commercial Tax Officer Chittoor-II Circle, Chittoor. 3 The Deputy Commercial Tax Officer, Palamaneru, Chittoor-II Circle, Chittoor. .....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 an appropriate writ or order or direction more particularly one in the nature of writ of mandamus declaring the action of the 2nd and 3rd respondents in issuing Form 5 and 7 vide Chittoor Gazette dt. 24-7-2008 under the Andhra Pradesh Revenue Recovery Act for the assessment Year 2003-2004 as arbitrary contrary to the Provisions of the Act and also in violation of principles of natural justice and consequently grant stay of collection of disputed demand of Rs. 1,43,974/- for the assessment year 2003-2004 pending disposal of the appeal before the Hon'ble Sales Tax Appellate Tribunal and pass such other suitable orders as this court may deem ﬁt and proper in the circumstances of the case. Counsel for the Petitioner: MR.SHAIK JEELANI PASHA Counsel for the Respondents: GP FOR COMMERCIAL TAX The Division Bench of this Court made the following order : THE HON’BLE SMT. JUSTICE T. MEENA KUMARI AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN *** WRIT PETITION No. 2 0 0 1 6 OF 2008. ORAL ORDER : ( Per the Hon’ble Smt. Justice T. Meena Kumari }. Seeking a writ of mandamus to declare the action of the second and third respondents in issuing Form No. 5 and 7 vide Chittoor Gazette dated 24-7-2008 under AP Revenue Recovery Act for the assessment year 2003-04 as arbitrary, contrary to the provisions of the Act and also in violation of principles of natural justice and consequently to grant stay of collection of disputed tax of Rs.1.43,974-00 for the assessment year 2003- 04 pending disposal of the appeal before the Sales Tax Appellate Tribunal and to pass such other suitable orders as this Court may deem ﬁt and proper in the circumstances of the case. 2. It is stated that the petitioner is a proprietary concern, carrying on business in running a small Hotel supplying food stuﬀs and cool drinks to the customers mostly, who are traveling to Bangalore and Bangalore to Tirupati, which is situated on the National Highway of Tirupati- Bangalore road. It is stated that the petitioner is a dealer on the rolls of the second respondent under APGST. For the assessment year 2003-04, the second respondent completed the assessment provisionally by proceedings dated 16-7-2004 and against the said proceedings the petitioner preferred an appeal before the Appellate Dy. Commissioner, CT, Kurnool, who by proceedings dated 10-3-2005 remanded the matter to the Assessing Authority for the years 2003-04 and 2004-05 (April and may 2004) respectively with a direction to make fresh assessment after verifying the real person who has done the business in this case on completion of the enquiry. But however, the second respondent without following the speciﬁc directions of the Appellate Authority and further without even issuing any notice as contemplated under the provisions of the Act, completed the remand assessment by proceedings dated 25-7-2006 raising a total demand of Rs.1,43,973-00 and arrived the balance demand payable by the petitioner is Rs.50,973/- and giving credit for tax payment made by the petitioner to an extent of Rs.93,000/-. 3. Aggrieved by the assessment proceedings of the second respondent, the petitioner ﬁled an appeal before the Appellate Deputy Commissioner, (CT), (FAC) Kurnool, who by proceedings dated 01-2-2008 dismissed by the appeal by a common order covering two assessment years 2003-04 and 2004-05 respectively. 4. Aggrieved by the proceedings of the ﬁrst Appellate Authority dated 01-2-2008, the petitioner ﬁled second and further appeal before the Sales Tax Appellate Tribunal, A.P., Hyderabad on 24-5-2008 and when pending appeal before the Sales Tax Appellate Tribunal ﬁled under section 21 of the Act, the second and third respondents were initiated action under A.P. Revenue Recovery Act by issuing Form Nos. 5, 7 and 7-A for arrears of tax collection. The said notice of attachment in Form No.5 and notice of sale of land in Form No.7 dated 24-7- 2008 proposing to sell the attached property of the petitioner in an extent of 138.8 sq.yards situated at survey no.722, Gantvoor, Palmaneru Mandal, Chittoor district and ﬁxing the date for auction of the said land to 15-10-2008. Therefore, the action of the third is not justiﬁed when the statutory appeal which was ﬁled under section 21 of the Act against the total demand of only Rs. 32,501-00 is pending before the Sales Tax Appellate Tribunal. 5. Sri Shaik Jeelani Pasha, the learned counsel for the petitioner seeks to contend that the petitioner ﬁled an application before the ﬁrst respondent seeking stay of collection of disputed tax as provided under the statute. But however, it is a known fact that in a short span of time the authority may reject the stay application in a routine manner without even considering the contentions of the petitioner. Now that the second respondent sent a communication dated 06-8-2008 to the District Collector, Chittoor stating that sale notice had been issued by the District Collector, Chittoor ﬁxing the date of auction on 15-10-2008 and the sale notice is published in the Chittoor District Gazette and ﬁfteen copies were submitted for exhibiting in the notice board for wide publicity. 6. It is submitted by the learned counsel for the petitioner that though several contentions were raised before the respondent concerned, the respondent concerned may refuse to grant stay in a routine course. It is submitted that the second respondent is contemplating to take coercive steps for recovery of the disputed tax. 7. Heard the learned counsel for the petitioner and the learned Special Standing Counsel for Commercial Taxes. 8. In the light of 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 50% of the disputed tax amount, as per the impugned order, within a period of two weeks from today and the respondents are directed not to take coercive step for recovery of the tax, pending ﬁnalization 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. With these directions, the writ petition is disposed of at the stage of admission. No order as to costs. ------------------------------------- JUSTICE T. MEENA KUMARI. ----------------------------------------------- JUSTICE RAMESH RANGANATHAN. 15-9-2008. I s L N B : 1) Operative Portion of the order by wire at party’s costs. 2) Furnish CC of the order in three days. B/o. I s L .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{BMR}