IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTIETH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE THE CHIEF JUSTICE and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos. 9211, 9230, 9282 AND 9324 OF 2009 WRIT PETITION NO : 9211 of 2009 Between: M/s. Andhra Pradesh Heavy Machinery & Engineering Limited (Subsidiary of Singareni Collieries Company Ltd.) Kondapalli, Krishna District, Rep. by its officer on Special Duty (Finance & Accounts) Mr. N. Chakravarthy ..... PETITIONER AND 1 The Commercial Tax officer, Krishnalanka Circle Vijayawada. 2 The Deputy Commissioner (CT), No.II Division, Vijayawada. 3 The Joint Commissioner (CT) Legal, Andhra Pradesh Hyderabad 4 The State of Andhra Pradesh Rep. by its Secretary, Revenue (CT) Department Secretariat, Hyderabad. .....RESPONDENT(S) 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 Certiorari or any other appropriate writ or order or direction quashing the order of the 3rd respondent in CCTs Ref.No. LV(2)/194/2009 dt. 9-4-2009 as illegal, arbitrary and unjustified and consequently restrain the 1st respondent from taking any coercive steps for recovery of the balance disputed tax of Rs. 1,03,86,612/- out of total disputed tax of Rs.1,38,48,816/- for the year 2003-04 (APGST) pending disposal of the appeal before the Sales Tax Appellate Tribunal, Additional Bench at Visakhapatnam WRIT PETITION NO : 9230 of 2009 Between: M/s. Andhra Pradesh Heavy Machinery & Engineering Limited (Subsidiary of Singareni Collieries Company Ltd.) Kondapalli-521 228, Krishna District, Rep. by its officer on Special Duty (Finance & Accounts) Mr. N. Chakravarthy ..... PETITIONER AND 1 The Commercial Tax officer, Krishnalanka Circle Vijayawada. 2 The Deputy Commissioner (CT), No.II Division, Vijayawada. 3 The Joint Commissioner (CT) Legal, Andhra Pradesh Hyderabad 4 The State of Andhra Pradesh Rep. by its Secretary, Revenue (CT) Department Secretariat, Hyderabad. .....RESPONDENT(S) 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 Certiorari or any other appropriate writ or order or direction quashing the order of the 3rd respondent in CCTs Ref.No. LV(2)/194/2009 dt. 9-4-2009 as illegal, arbitrary and unjustified and consequently restrain the 1st respondent from taking any coercive steps for recovery of the balance disputed tax o f Rs. 14,29,948/- out of total disputed tax of Rs.19,06,597/- for the year 2003-04 (APGST) pending disposal of the appeal before the Sales Tax Appellate Tribunal, Additional Bench at Visakhapatnam WRIT PETITION NO : 9282 of 2009 Between: M/s. Andhra Pradesh Heavy Machinery & Engineering Limited (Subsidiary of Singareni Collieries Company Ltd.) Kondapalli-521 228, Krishna District, Rep. by its officer on Special Duty (Finance & Accounts) Mr. N. Chakravarthy ..... PETITIONER AND 1 The Commercial Tax officer, Krishnalanka Circle Vijayawada. 2 The Deputy Commissioner (CT), No.II Division, Vijayawada. 3 The Joint Commissioner (CT) Legal, Andhra Pradesh Hyderabad 4 The State of Andhra Pradesh Rep. by its Secretary, Revenue (CT) Department Secretariat, Hyderabad. .....RESPONDENT(S) 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 Certiorari or any other appropriate writ or order or direction quashing the order of the 3rd respondent in CCTs Ref.No. LV(2)/194/2009 dt. 9-4-2009 as illegal, arbitrary and unjustified and consequently restrain the 1st respondent from taking any coercive steps for recovery of the balance disputed tax of Rs. 5,23,326/- out of total disputed tax of Rs.6,97,768/- for the year 2003-04 (APGST) pending disposal of the appeal before the Sales Tax Appellate Tribunal, Additional Bench at Visakhapatnam WRIT PETITION NO : 9324 of 2009 Between: M/s. Andhra Pradesh Heavy Machinery & Engineering Limited (Subsidiary of Singareni Collieries Company Ltd.) Kondapalli-521 228, Krishna District, rep. by its Officer on Special Duty (Finance & Accounts), N. Chakravarthy. ..... PETITIONER AND 1 The Commercial Tax Officer, Krishnalanka Circle, Vijayawada. 2 The Deputy Commissioner (CT), No.II Division, Vijayawada. 3 The Joint Commissioner (CT) Legal, Andhra Pradesh, Hyderabad. 4 The State of Andhra Pradesh, rep. by its Secretary Revenue (CT) Department, Secretariat, Hyderabad. .....RESPONDENT(S) 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 Certiorari or any other appropriate writ or order or direction quashing the order of the 3rd respondent in CCT's Ref.No.LV(2)/194/2009 dated 9.4.2009 as illegal, arbitrary and unjustified and consequently restrain the 1st respondent from taking any coercive steps for recovery of the balance disputed tax of Rs.2,05,48,615/- out of total disputed tax of Rs.2,73,98,153/- for the year 2004-05 (APGST), pending disposal of the appeal before the Sales Tax Appellant Tribunal, Additional Bench at Visakhapatnam Counsel for the Petitioner: MR.S.DWARAKANATH (In all cases) Counsel for the Respondents: Sri K. Raji Reddy, Special Standing Counsel for Commercial Tax (In all cases) The Court made the following : COMMON ORDER: (Per Sri Anil R. Dave, CJ) Since the legal issues involved in all these writ petitions being the same, they are disposed of by this common order. Rule. Service of Rule is waived by Sri K. Raji Reddy, learned standing counsel appearing for the respondents in each petition. At the request of the learned advocates, all the petitions are taken up for final hearing The petitioner, a Government Company, has been aggrieved by orders dated 09-04-2009 passed by the Joint Commissioner (CT) Legal, Hyderabad, whereby the revision applications filed it have been rejected. The case of the petitioner is that it is facing financial difficulties. It is its case that so as to help it, the Government has issued G.O.Ms.No. 678, dated 01-12-1995, which reads as under: “In exercise of the powers conferred by sub-section (1) of section 9 of the Andhra Pradesh General Sales Tax Act, 1957 (Act VI of 1957), the Governor of Andhra Pradesh hereby directs that the tax leviable under section 5 read with item 83 of the First Schedule to the said Act, shall in respect of sales of machinery manufactured by M/s. Andhra Pradesh Heavy Machinery and Engineering Limited, Kondapalli, Krishna District, be two paise in the rupee during the period of rehabilitation.” It has been submitted by the learned advocate appearing for the petitioner that rehabilitation proceedings are at present pending. In the circumstances, the petitioner Company ought to have been given benefit under the aforestated notification issued under G.O.Ms.No. 678, dated 01-12-1995 . It has been submitted by the learned advocate appearing for the petitioner that on one hand, the State of Andhra Pradesh desires to help the petitioner Company, which is in financial difficulties and on the other hand, it has been called upon to pay tax of approximately Rs.3.29 Crores, which is not in consonance with the aforestated GO and notification. If the petitioner Company is constrained to pay the aforestated amount, it would be very difficult for it to sustain its existence and it would be put to further difficulties. By virtue of the impugned orders, the petitioner Company had been directed to pay 50% of the disputed amount of tax. While coming to the aforestated conclusion, respondent No. 3, who has passed the impugned orders had not taken into account G.O.Ms.No. 678, dated 01-12-1995 for the reason that at present, there is no scheme framed by Board of Industrial and Financial Reconstruction (BIFR). In our opinion, simply because no scheme has been framed at present by BIFR, it cannot be said that the Company is no longer under rehabilitation. In fact, proceedings for rehabilitation are pending before the BIFR. Upon perusal of order dated 30-11-2007 passed by the BIFR, we find that the Company turned positive by 31-03-2006. It denotes that prior to 31-03-2006, the Company was under rehabilitation. At present, the petitioner is concerned with assessment orders for the years 2006-07. In the circumstances, we are prima facie inclined to come to the conclusion that the Company was under rehabilitation at the relevant time. Prima facie, we are of the view that the petitioner deserves grant of interim relief during the pendency of the appeals filed by it. It is therefore directed that during the pendency of the appeals, no amount of tax, which is the subject matter of the appeals shall be recovered by using any coercive method. Observations made hereinabove by this Court shall not be considered by the appellate authority while deciding the appeals as the observations are not final and they are limited for the purpose of grant of interim relief to the petitioner. The writ petitions stand disposed of as allowed to the above extent with no order as to costs. ANIL R. DAVE, CJ RAMESH RANGANATHAN, J 30th April, 2009. ks