IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIRST DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION No.13618 OF 2006 Between: M/s. NYSE Infrastructure Private Limited, Rep. by its D.G.M(Taxation) and Authorised Signatory Administratvie Office at D.No. 48-9-17, Dwaraka Nagar, Visakhapatnam-16 ..... PETITIONER AND 1. State of Andhra Pradesh, Rep. by its Principal Secretary (Revenue) CT , Secretariat Buildings, Hyderabad. 2. National Highways Authority of India (NHAI), Plot No . G-5 & G-6 Sector 10, Dwaraka, New Delhi. 3. Commissioner of Commercial Taxes, Government of Andhra Pradesh, Hyderabad. 4. Assistant Commissioner (CT) Int. & LTU 5. Soma Enterprise Limited, 14, Avenue-4, Banjara Hills, Hyderabad-500 034. 6. Navayuga Engineering Company Limited, Office at 48-9-17, Dwarakanagar, Visakhapatnam-530 016 7. The Commercial Taxes Officer (CTO) Jubilee Hills Circle, Hyderabad. 8. The Commercial Taxes Officer (CTO) Dwarakanagar Circle, Visakhapatnam. 9. Authority for Clarification and Advance Ruling Commercial Taxes Buildings Opp. Gandhi Bhavan, 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 a WRIT OF MANDAMUS or any other appropriate writ or Order or Direction to: i) Declare that the activity undertaken by the petitioner in terms of the Concession Agreement entered with National Highways Authority of India does not come under the definition of "sale", and; ii) Declare the action of the 2nd Respondent in recovering the tax at source from the annuity amount paid to the petitioner relying on the order passed by the Authority for Clarification and Advance Ruling dated 07-11-2005 as illegal, arbitrary, harsh confiscatory and without authority of law and set aside the deduction with direction to release the amount deducted to the petitioner; and further restrain the 2nd Respondent from recovering any amount by way of TDS from the future annuity payable to the petitioner; iii) Declare that Section 22(3) and (4) of the Andhra Pradesh VAT Act, 2005 along with Rule 18 (1) of A.P. VAT Act Rules, 2005 and the Explanation VI of Section 2(28) and Section 2(29) (c)(i)(a), as ultra Vires and beyond the legislative competence of the State of Andhra Pradesh under Entry 54 of List-II of VIIth . Schedule to the Constitution of India, since no safeguards or machinery are provided preventing excess deduction of tax at source and violative of Article 269(1)(g) and 286 of the Constitution of India read with section 3,4 & 5 of the Central Sales Tax Act, 1956 besides being Ultra Vires Article 366(29A) and also declare that the said provisions are invalid since they are inconsistent with Article 14,19(1)(g) and cannot be enforced since they are also violative of Article 265 and Article 300A of the Constitution of India; and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner : MR.S.V.S.CHOWDARY Counsel for the Respondents: GP FOR REVENUE The Court made the following : THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No.13618 OF 2006 O R D E R (Per Sri Justice V.Eswaraiah) Both the counsel appearing for the petitioner as well as for the respondents submits that the subject matter of the writ petition is covered by a judgment of a Division of this Court in W.P.No.8374 of 2006, dated 12.04.2007. Following the said judgment, the writ petition is allowed and in so far as the petitioner is concerned, no demand of tax was made pursuant to the assessment orders, though the final assessments were completed. However, the respondents are at liberty to recover the tax, if any, from any other assessee/sub-contractor. There shall be no order as to costs. -------------------------- V.ESWARAIAH, J. ---------------------------- SANJAY KUMAR, J. 21st APRIL, 2009 PGS THE HONOURABLE SRI JUSTICE V.ESWARAIAH AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No.13618 OF 2006 (Per Sri Justice V.Eswaraiah) 21st APRIL, 2009