IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIRST DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 15542 of 2008 Between: M/s. Hotel Anand Vihar, Hyderabad, Rep. by its Partner Sri N.raghavendra Rao, S/o. N.R.Narayana Rao Ranga Reddy District. ..... PETITIONER AND 1 The Additional Commissioner of Commercial Taxes, (Legal) Office of Commissioner of Commercial Taxes, M.J.Road, Nampally, Hyderabad. 2 The Appellate Deputy Commissioner of Commercial Taxes, Punjagutta Division, Hyderabad. 3 The Commercial Tax Officer, Begumpet Division, Hyderabad. .....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, order or direction in the nature of Writ of Mandamus declaring the impugned arrear notice dt.25-6-2008 served on the petitioner on 07.07.2008 issued by the Commercial Tax Officer, Begumpet Circle, Hyderabad coercing the petitioner to pay the disputed penalty of Rs.59,21,640/- for assessment year 2004.05 during pendency of the application for stay filed on 10.07.2008 before the Additional Commissioner of Commercial taxes Legal), Hyderabad and during subsistence of the assessment appeal and penalty appeal on the file of the Appellate Deputy Commissioner (CT), Punjagutta Division, Hyderabad as illegal, improper, arbitrary, unfair and opposed to the principles of natural justice and infringing Articles 14 & 19(1)(g) of the Constitution of India and consequently forbear the Assessing Authority i.e. Commercial Tax Officer, Begumpet Circle, Hyderabad from recovering the penalty, pending disposal of the Appeals filed by the petitioner and grant such other relief or relief as are deemed fit and proper in the ends of justice. Counsel for the Petitioner:MR.M.V.J.K.KUMAR Counsel for the Respondents.: SPL. STANDING COUNSEL FOR COMMERCIAL TAX The Court made the following : THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 15542 of 2008 ORDER: (Per Hon’ble Smt. Justice T. Meena Kumari) This writ petition is filed by the petitioner seeking to declare the arrear notice, dated 25.6.2008 issued by the Commercial Tax Officer, demanding the petitioner to pay the disputed penalty for the assessment year 2004-05, during the pendency of the application for stay and the appeals against the assessment and penalty, as illegal and arbitrary and consequently, to grant stay of recovery of penalty pending disposal of the appeals. It is the case of the petitioner that against the penalty proceedings issued by the 3rd respondent, an appeal has been filed before the 2nd respondent, along with a stay petition. But the 2nd respondent rejected the stay petition. Challenging the stay rejection order, the petitioner filed an appeal before the 1st respondent. Meanwhile, the 3rd respondent is trying to initiate the recovery proceedings. Having aggrieved by the same, the present writ petition has been filed. Heard the learned Counsel for the petitioner and the learned Special Standing Counsel for Commercial Tax and perused the material available on record. The learned Counsel for the petitioner contended that an appeal has been preferred against the penalty proceedings and the same is pending and at this juncture, if the relief as to the stay of collection of the penalty is not entertained and if the recovery of the penalty in question is effected during the pendency of the appeal, the very purpose of filing the said appeal, which is a statutory remedy that is available to the aggrieved party, would be defeated. In the facts and circumstances of the case and in view of the pendency of the appeal before the 2nd respondent, without expressing any opinion on the merits of the case, We feel it a fit case wherein stay can be granted, but subject to imposition of certain conditions. Accordingly, there shall be stay of recovery of the penalty in question for the assessment year 2004-2005, till disposal of the appeal pending before the 2nd respondent, subject to the condition of the petitioner depositing 25% of the penalty, within a period of six (6) weeks from today. However, it is made clear that the penalty amount, if any already paid, shall be given credit to the above stipulated sum. Accordingly, W.P. is disposed of. ________________________ Justice T. Meena Kumari ___________________________ Justice Ramesh Ranganathan Date: 21st July, 2008 Nn. THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No:15542 OF 2008 (Order delivered by the Hon’ble Smt. Justice T. Meena Kumari) 21/07/2008