THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON'BLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION No.19197 of 2011 ORDER: (per Hon’ble Sri Justice Goda Raghuram) The order of the Joint Commissioner, Commercial Taxes - third respondent dated 18.06.2011 rejecting the stay application filed by the petitioner, pending appeal preferred by the petitioner in T.A.No.383 of 2011 before the Sales Tax Appellate Tribunal (STAT), against the order of the Appellate Deputy Commissioner (CT), Hyderabad -second respondent dated 03.02.2011 in ADC Order.No.293 being Appeal No.S/89/09-10/V, rejecting an appeal against an order of penalty imposed by the Assistant Commissioner (CT), Hyderabad - first respondent, is under challenge in this writ petition. Suffice to notice that, against the order of assessment dated 04.12.2005 passed by the first respondent for the tax period 01.09.2005 to 30.09.2005 under the Andhra Pradesh Value Added Tax Act, 2005, the petitioner preferred an appeal to the second respondent. By a laconic order, the appeal was dismissed on 19.12.2006. By separate order dated 03.07.2009, the first respondent determined liability of the petitioner to penalty at 25% of the tax due. Thereagainst, the petitioner preferred an appeal to the second respondent which was rejected, by an order dated 03.02.2011, which is also laconic. Against the appellate order of the second respondent dated 03.02.2011, the petitioner preferred T.A.No.383 of 2001, and approached the third respondent for stay pending the appeal in T.A.No.383 of 2001. By the order impugned, the application for stay was rejected by the third respondent. Sri S.Dwarakanath, learned Counsel for the petitioner, impeaches the order on a plurality of grounds, including that the stay application was rejected on an assumption by the third respondent that the petitioner while objecting to imposition of penalty of 100% of the tax liability had acquiesced in imposition of penalty at 25%, an assumption that has no basis. Another ground urged is that as the STAT has no power to grant stay pending appeal, the assessee has necessarily to approach the third respondent for stay and the third respondent was duty bound to consider whether the petitioner had an arguable case in the appeal before the STAT. The third respondent did not advert to any of these relevant facts while declining grant of stay. In the facts and circumstances, and having regard to the nature of the order passed by the second respondent dated 03.02.2011 dismissing the petitioner’s appeal against the order of penalty imposed by the first respondent, and in view of the fact that the petitioner did not acquiesce in or submit that he was satisfied with imposition of 25% penalty, the order of the third respondent is clearly unsustainable and is, accordingly, quashed. In the facts and circumstances, the Writ Petition is disposed of directing the third respondent to adjudicate upon the petitioner’s application for stay de novo duly considering whether the petitioner has a prima facie or arguable case before the STAT in T.A.No.383 of 2011, and in the light of the fact that the petitioner was not agreeable to imposition of penalty of 25%. The third respondent shall pass a considered order on the petitioner’s application for stay expeditiously, after providing an opportunity of hearing, and preferably within a period of one month from the date of receipt of a copy of this order. Till then no coercive steps shall be taken by the respondents pursuant to the order of penalty imposed by the first respondent by his order dated 18.05.2009. No order as to costs. GODA RAGHURAM,J N.RAVI SHANKAR,J Date:06.09.2011 usd