1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.06.2011 C O R A M THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.(MD)No.6006 of 2011 Vignesh Pharmaceuticals, Rep. by its Partner V.R.Kumaran Petitioner -Vs-. 1.The Appellate Deputy Commissioner (CT), Madurai (North), C.T. Buildings, Madurai - 20. 2.The Assistant Commissioner (CT), West Tower Street Circle, Madurai - 20. Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records on the file of the first respondent in S.P.No.10 of 2011 in A.P.No.(VAT) 19 of 2011 dated 15.04.2011 and quash the same insofar as the condition with regard to the furnishing of security for the entire penalty of Rs.2,50,441/- is concerned. For Petitioner M/s.A.Chandrasekaran For Respondents Mr.TR.Janarthanam Additional Government Pleader ORDER This writ petition has been filed challenging the order dated 15.04.2011 passed by the appellate authority in S.P.No.10 of 2011 in A.P.No.(VAT) 19 of 2011. 2. According to the petitioner, an appeal has been preferred as against the revised assessment order. It is also contended by the petitioner that as far as the tax payable is concerned, he has fully paid the tax, but, only as against the penalty, he filed an application for stay before the appellate authority. The Appellate Authority, in its order, has permitted the petitioner to execute a security in respect of penalty by way of bank guarantee from any nationalized bank. His main contention is that since he has paid the entire amount of tax, the appellate authority ought to have considered his request and allowed him to execute personal bond instead of seeking bank guarantee for the penalty amount as it is the subject matter in the appeal. In this connection, the learned counsel appearing for the petitioner relied upon the order dated 25.03.2011 passed in W.P.(MD)No.3552 of 2011 (Hajee Abdul https://hcservices.ecourts.gov.in/hcservices/ 2 Kareem v. The Appellate Deputy Commissioner, Virudhunagar and another) and a Division Bench judgment dated 25.04.2011 passed by this Court in W.A.(MD) No.159 of 2005 (Tvl.Hari Industries Rep. by its Proprietor Brij Mohan Gupta v. The Appellate Assistant Commissioner (CT), Madurai and another) wherein, in a similar circumstance, this Court has modified even in the case of payment of tax itself by executing personal bond. He has paid the full tax amount he only seeks to execute a personal bond instead of bank guarantee. 3. Mr.TR.Janarthanam, learned Additional Government Pleader takes notice for the respondents. On instructions, he would submit that the petitioner may be directed to pay at least 25% of the penalty amount as he has paid the tax amount. 4. Heard both sides. 5. As the pendency of the writ petition will delay the process of conducting the appeal, the writ petition itself is taken up for final disposal. 6. The short point raised by the petitioner in the stay application filed before the appellate authority is that after paying the entire sales tax amount, he has only sought stay of the penalty amount. The learned Appellate Authority has only granted the order on condition that the petitioner executes a bank guarantee for the full amount or property security. But, in a similar circumstance, a Division Bench of this Court, has passed a judgment wherein even in the case of payment of tax itself, an order has been passed and the relevant portion of the said order is extracted as under: "3. Having regard to the facts and circumstances of the case, we are of the opinion that the order passed by the learned Single Judge is required to be modified in the interest of justice. It is directed that the appellant shall pay 50% of the tax component. If any amount has already paid, the balance amount should be paid, so that the total would come to 50% of the tax component. In respect of the balance liability towards tax and towards penalty, the appellant shall be permitted to file a personal bond undertaking to pay the amount. This may be done within a period of two weeks from the date of receipt of copy of this order." 7. Following the above said decision, I have passed an order in W.P.(MD) No.3552 of 2011, on 25.03.2011 directing the petitioner to execute a personal bond. In this case, as rightly pointed out by the petitioner that he has already paid the entire tax liability and he is only seeking stay of the penalty amount which is the subject matter in the appeal before the appellate authority, following the Division Bench judgment referred to above, the objection of the learned Additional Government Pleader appearing for the respondents i.e., seeking a direction to the petitioner to pay 25% of the penalty amount, is overruled. 8. In fine, the writ petition is allowed to the limited extent that there will be a stay of operation of the collection of penalty amount on condition that the petitioner executes a personal bond to that effect within a period of ten days from the date of receipt of a copy of this https://hcservices.ecourts.gov.in/hcservices/ 3 order and the stay will continue till the appeal is disposed of and the appellate authority will decide the appeal as expeditiously as possible. No costs. Sd/- Assistant Registrar (Crl. Side) /True Copy/ Sub Assistant Registrar (C.S) To 1.The Appellate Deputy Commissioner (CT), Madurai (North), C.T. Buildings, Madurai - 20. 2.The Assistant Commissioner (CT), West Tower Street Circle, Madurai – 20. + 1 cc to Mr.A.Chandrasekaran, Advocate, SR No.17921 + 1 cc to The Special Government Pleader, SR No.18170 W.P.(MD)No.6006 of 2011 10.06.2011 srm RJ/23.6.11 3p/5c https://hcservices.ecourts.gov.in/hcservices/