IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SECOND [22ND] DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE GODA RAGHURAM AND THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY WRIT PETITION No. 27664 of 2009 Between: M/s Pavani Engineers, Plot No.48 Vasavi Nagar Colony, Karkhana, Secunderabad-500 015 Rep. by its Managing Partner, V.Subramanian ..... PETITIONER A N D The State of A.P., rep. by its Principal Secretary Commercial Taxes, Secretariat, Hyderabad & 2 others .....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 Certiorari or any other appropriate writ or order or direction quashing the order of the 2nd respondent dated 18.11.2009 for the years 2007-08 & 2008-09 as illegal, arbitrary and pass such other appropriate orders. Counsel for the Petitioner: MR.S.Dwarakanath & K. Uma Counsel for the Respondents: Sri A.V.Krishna Koundinya, Spl. SC for Commercial Taxes The Court made the following: ORAL ORDER:(Per GR,J) An order of assessment dated 18.11.2009 passed by the 2nd respondent for 2007-08 and 2008-09 under the A.P. VAT Act, 2005, determining the balance liability to tax at Rs.1,92,20,978/-, is assailed in this writ petition on several grounds, including that the 2nd respondent Assessing Authority had applied the ratio of the judgment in ‘KONE ELEVATORS (INDIA) LIMITED VS. STATE OF TAMIL NADU[1]’, notwithstanding that the said judgment has been referred for reconsideration to a Larger Bench by the order of the Supreme Court in ‘Kone Elevators (India) Limited’s case [15 VST 457]; that the Assessing Authority had ignored the provisions of Rule 17(1)(g) of the A.P.VAT Rules, 2005 in making the assessment; and the 2nd respondent erred in duly considering the contention on behalf of the assessee that the decision of the Supreme Court in Kone Elevator’s case (first supra) is distinguishable on the special facts of the assesse’s case. 2. Against the order of the assessment, the petitioner has a remedy by way of an appeal to the Appellate-Deputy Commissioner and the petitioner has time available to prefer such an appeal. It is stated by Sri R.L. Ramani, learned Senior Counsel instructed by Sri S.Dwarakanath, learned counsel for the petitioner, that the time for preferring the appeal i.e., the initial time of 30 days has expired by 21.12.2009. However, the assessee may prefer an appeal within a further period of 30 days beyond the initial period of 30 days, by showing due cause for the delay i.e., that it had approached this Court for Certiorari against the order of assessment. In the circumstances, we are not inclined to the view nor impressed by the contention on behalf of the petitioner that the petitioner has effectively lost the appellate remedy. 3. Sri R.L. Ramani would also contend that the issue - whether the decision in ‘Kone Elevators’ case (first supra) should be applied notwithstanding the order of reference of the said decision for consideration by the Larger Bench, is more appropriately determined in judicial review than an appeal. This contention does also not merit acceptance. Every Court, quasi-judicial authority or a competent authority applies the same theories of precedents. This contention would well be urged before the appellate authority itself and such authority would deal with the issue. The other contention that the assessing authority erred in giving effect to the provisions of Rule 17(1)(g) of the AP VAT Rules, 2005 on a conclusion that the provisions of the Act would prevail, is also an aspect that could be gainfully urged before the appellate authority. Such error, if at all is not an error vitiated by patent lack of jurisdiction, but could constitute an error within jurisdiction and amenable to appellate scrutiny. 4. It is further contended by Sri R.L. Ramani, senior counsel appearing for the petitioner, that the order of assessment is vitiated by the failure of the assessing authority in failing to compute the input tax credit benefit. This error as is urged is equally amenable to appellate scrutiny. 5. As the order of assessment would now entail the liability of the petitioner to the payment of tax as assessed and would potentially invite coercive process for recovery of the tax by the respondent, we consider it appropriate in the circumstances and while relegating the petitioner to an appellate remedy, to grant stay of collection of the disputed tax, as assessed by the 2nd respondent by the order impugned dated 18-11-2009 on condition that the petitioner deposits an amount of Rs. 50,00,000/- [Rupees fifty lakhs only] to the credit of the 2nd respondent, of which Rs.25,00,000/- (Rupees twenty five lakhs only) shall be credited within a period of four [4] weeks from today and the balance Rs.25,00,000/- (Rupees twenty five lakhs only) within four [4] weeks thereafter. In default of either of the deposits hereinabove and within the respective time stipulated, the stay granted herein shall stand vacated without further reference to this Court and the respondents would be at liberty to proceed in accordance with law for collection of the entire tax due, as assessed by the order impugned. The appellate authority would take this deposit into consideration as part of the pre-deposit in preferring the appeal. The stay granted herein would operate pending disposal of the appeal if any, preferred by the petitioner within the further period of 30 days (out of the total period of 60 days from the date of receipt of a copy of the order of impugned assessment). 6. The writ petition is disposed of as above at the stage of admission, after hearing Sri R.L. Ramani, learned Senior counsel appearing for the petitioner and Sri Krishna Koundinaya, Special Government Pleader for Commercial Taxes for the respondents. However, There shall be no order as to costs. ___________________ GODA RAGHURAM, J ___________________ G.V.SEETHAPATHY, J December 22nd 2009. Lrkm/Bss. [1] 140 STC 22