IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTEENTH 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 : 20267 of 2008 Between: SREI Infrastructure Finance Limited, (Formerly Srei International Finance Limited), Having its Regd. Office at Kolkata and locak office 1-10-74/B, Begumpt, Hyderabad -16. Rep. by its Authorized Signatory, Mr. Jaidip Basu. ..... PETITIONER AND 1 Commercial Tax Officer, Mahankali Street Circle, SECUNDERABAD. 2 The Appellate Deputy Commissioner of Commercial Taxes, Secunderabad Division, Commercial Tax Building, Nampally, 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, more particularly a Writ in the nature of Writ of Mandamus setting aside the order of the 2nd Respondent passed in Appeal No. S/98-08-09 dated. 02-09-2008, and further restraining the respondents from recovering the disputed tax of Rs. 5,16,17,337/- in pursuance of the order of 1st respondent in G.I.No. 2737/2001-02/APGST dated 28-06- 2008 and to pass such other suitable orders as this Court may deems fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.S.CHAKRAPANI Counsel for the Respondents: GP FOR COMMERCIAL TAX The Division Bench of this Court made the following order: THE HON'BLE MRS JUSTICE T.MEENA KUMARI A N D THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 20267 of 2008. O R D E R : (Per the Hon’ble Smt. Justice T. Meena Kumari ). The writ petition is ﬁled seeking a writ of mandamus to set aside the order passed by the second respondent in Appeal No. S/98-08-09 dated. 02-09-2008, further restraining the respondents from recovering the disputed tax of Rs. 5,16,17,337/- in pursuance of the orders passed by the ﬁrst respondent in G.I.No. 2737/2001-02/APGST dated 28-06-2008 and to pass such other suitable orders as this Court may deems ﬁt and proper in the circumstances of the case. 2. Aggrieved of the orders passed by the second respondent dated 02-9-2008 rejecting the stay application ﬁled by the petitioner seeking to stay of collection of disputed tax pursuant to the orders passed by the ﬁrst respondent in GI.No.2737/2001-02/APGST dated 28-6-2008, pending disposal of the appeal before the second respondent, Appellate Deputy Commissioner, the present writ petition is filed. 3. It is stated that the petitioner is a Non- Banking Financial Company, engaged in the asset ﬁnance business, rendering ﬁnance through ﬁnancial lease, hire purchase and loan against hypothecation of assets mainly in the infrastructure sector. It is stated that the assessment for the year 2001-02 has a chequered history, as the illegal and arbitrary assessment order passed by the ﬁrst respondent was twice set aside by the second respondent for denovo consideration with speciﬁc direction to the ﬁrst respondent, once by the Additional Commissioner (CT) (Legal) and ﬁnally by the orders passed by this Court dated 21-2-2008 in WP.No.24681 of 2006. Initially a provisional assessment was made on 27-3-2002 for a period of seven months on a gross turn over of Rs.64,64,90,673-00 which was challenged before the ﬁrst appellate authority. But the ﬁrst appellate authority set aside the order dated 27-3-2002 and remanded the matter back to the Assessing Authority, with speciﬁc direction through order dated 11-6-2002. Disregarding the speciﬁc direction given by the Appellate Deputy Commissioner, the ﬁrst respondent passed the assessment order dated 17-1-2004 on a gross turn over of Rs.110,82,69, 725-00 by taking the turn overs relating to seven months and extrapolating the turn over for remaining ﬁve months. Thereafter, again the order dated 17-1-2004 was challenged before the Appellate Deputy Commissioner and the same was remanded to the Assessing Oﬃcer by passing appropriate directions. 4. It is further stated that the Additional Commissioner (CT) (Legal) in exercise of the revisional powers under section 20 (2) of the APGST Act, all the assessment and appellate orders proposing to determine a turn over of Rs.110,82,69, 725-00. Thereafter the petitioner ﬁled written objections and after hearing the same, the Additional Commissioner (CT) (Legal) remanded the matter back to the Commercial Tax Oﬃcer for fresh re-consideration. On such remand, the Commercial Tax Oﬃcer issued show caus3e notice dated 13-9-2006 proposing to tax a higher turn over of Rs.158,97,45, 128-00 as against the initial turn over of Rs,.64,64,90,673/-. The petitioner ﬁled WP.No.24681 of 2006 on 25- 11-2006 challenging the show cause notice dated 13-9-2006 issued by the Commercial Tax Oﬃcer, Mahankali Street, Secunderabad, disregarding the clear direction of the Additional Commissioner (CT) (Legal) and the binding precedents. This Court by an order dated 11-12-2006 directed the petiioner to deposit R.3.00 crores out of the total disputed tax liability of Rs.12.00 crores. During the pendency of the writ petition, the Commercial Tax Oﬃcer passed ﬁnal assessment order dated 27-11-2006. Finally the writ petition was disposed of by order dated 21-2-2008 setting aside the assessment order dated 27-11-2006 directing the Commercial Tax Oﬃcer to pass fresh assessment order after considering the objections ﬁled by the petitioner. 5. It is further stated that in pursuance of the orders passed by this court, the petitioner ﬁled detailed objections and all the relevant documents before the ﬁrst respondent. However, the ﬁrst respondent passed the assessment order dated 28-6-2008 on a turn over of Rs.64,52,16,715-00 and determined the tax payable at Rs.5,20,51,758 /- by disallowing the claims relating to double accounting which is of the order of Rs.56,79,67,512, Rs.7,14,11,952/- relating to transfer of right to use (Rs.5,56,00,462-00 plus Rs.1,58,11-490/-) and Rs.58,37.,251-00 relating to second sales in Truck in A.P. 6. The learned counsel for the petitioner stated that the petitioner has already paid around 80% of disputed tax out of his its pocket. Further the substantial portion of the disputed turn over relates to double accounting and the petitioner is advised of fair chances of success at appellate stage. Hence, the learned counsel submitted that the relief sought for in the writ petition may be granted. 7. Heard the learned counsel for the petitioner as well as the learned Govt.Pleader for Commercial Tax. 8. 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 50% of the disputed tax amount, as per the impugned order, within a period of eight weeks from today and in the meantime the respondents are directed not to take coercive step for recovery of the 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. With these directions, the writ petition is disposed of. No order as to costs. __________________________ JUSTICE T. MEENA KUMARI. __________________________________ JUSTICE RAMESH RANGANTHAN. 18-09-2008. NB : Furnish CC of the order tomorrow. // BY ORDER // I s L . REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{SPJS}