IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINTH DAY OF JANUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION NOs: 309, 310 & 311 of 2009 W.P.No.309/2009 Between: MSM Discovery Pvt. Ltd., (Formerly SET Discovery Pvt. Ltd.,) a Company incorporated under the Companies Act, 1956 having its Registered Office at Interface, Building No. 7, New Malad Link Road, Malad (West), Mumbai - 400064 represented by its Senior Manager - Legal, Mr.Pulak Bagchi. ..... PETITIONER AND 1 The Appellate Deputy Commissioner (CT) Vijayawada Division, Vijayawada. 2 The Commercial Tax Officer, Governorpet Circle, II Floor, North Block, Commercial Tax Complex, Yanamalakuduru Road, Autonagar, Vijayawada. 3 The Joint Commissioner(CT) Legal, Commercial Tax Department, Nampally, Hyderabad - 500 001. .....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, more particularly one in the nature of Writ of Mandamus or any other appropriate writ order or direction declaring the order dated 29.11.2008 in Appeal No. VJA II/182/05-06 of the Respondent No.1 as illegal, nonest, void and inoperative in law including the consequential garnishee notice No. RC.No.Nil/2002-03 to 2004-05, dated 27.12.2008 of Respondent No.2 viz., the Commercial Tax Officer, Governorpet Circle, II Floor, North Block, Commercial Tax Complex, Yanamalakuduru Road, Autonagar, Vijayawada attaching the accounts of the Petitioner with HDFC Bank, MG Road, Vijayawada issued under Section 17 of the APGST Act read with Section 29 of the AP VAT Act and Set-aside the same and pass such further or other order/s. WRIT PETITION NO : 310 of 2009 Between: MSM Discovery Pvt. Ltd., (Formerly SET Discovery Pvt. Ltd.) a Company incorporated under the Companies Act, 1956 having its Registered Office at Interface, Building No.7, New Malad Link Road, Malad (West), Mumbai-400064, rep. by its Senior Manager -Legal, Mr. Pulak Bagchi. ..... PETITIONER AND 1 The Appellate Deputy Commissioner (CT), Vijayawada Division, Vijayawada. 2 The Commercial Tax Officer, Governorpet Circle, II Floor North Block, Commercial Tax Complex, Yanamalakuduru Road, Autonagar, Vijayawada. 3 The Joint Commissioner (CT) Legal, Commercial Tax Department, Nampally, Hyderabad-500 001. .....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, more particularly one in the nature of Writ of Mandamus or any other appropriate writ order or direction declaring the Order dated 29/11/2008 in Appeal No. VJA II/183/05-06 of the Respondent No.1 as illegal, non-est, void and inoperative in law including the consequential garnishee notice No.RC.No.Nil/2002-03 to 2004-05, dated 27/12/2008 of Respondent No.2 viz., the Commercial Tax Officer, Governopet Circle, II Floor, North Block, Commercial Tax Complex, Yanamalakuduru Road, Authonagar, Vijayawada attaching the accounts of the Petitioner with HDFC Bank, MG Road, Vijayawada issued under Section 17 of the APGST Act read with Section 29 of the AP VAT Act and set-aside the same and pass WRIT PETITION NO : 311 of 2009 Between: MSM Discovery Pvt. Ltd., (Formerly SET Discovery Pvt. Ltd.) a Company incorporated under the Companies Act, 1956 having its Registered Office at Interface, Building No.7, New Malad Link Road, Malad (West), Mumbai-400064, rep. by its Senior Manager -Legal, Mr. Pulak Bagchi. ..... PETITIONER AND 1 The Appellate Deputy Commissioner (CT), Vijayawada Division, Vijayawada. 2 The Commercial Tax Officer, Governorpet Circle, II Floor North Block, Commercial Tax Complex, Yanamalakuduru Road, Autonagar, Vijayawada. 3 The Joint Commissioner (CT) Legal, Commercial Tax Department, Nampally, Hyderabad-500 001. .....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, more particularly one in the nature of Writ of Mandamus or any other appropriate writ order or direction declaring the Order dated 29/11/2008 in Appeal No.VJA II/184/05-06 of the Respondent No.1 as illegal, nonest, void and inoperative in law inclduing the consequential garnishee notice No.RC.No.Nil/2002-03 to 2004-05, dated 27/12/2008 of Rspondent No.2 viz., the Commercial Tax Officer,Governoper Circle, II Floor, North Block, Commercial Tax Complex, Yanamalakuduru road, Authonagar, Vijayawada attaching the accounts of the Peittioner with HDFC Bank, MG Road, Vijaywada issued under Section 17 of the APGST Act read with Section 29 of the AP VAT Act and set-aside the same and pass Counsel for the Petitioner: MR.C.R.SRIDHARAN (in all W.Ps) Counsel for Respondents: GP FOR COMMERCIAL TAX (in all W.Ps.) The Court made the following : COMMON ORDER: (Per the Hon’ble Sri Justice V. Eswaraiah) Heard learned counsel for the petitioner as well as learned counsel for the respondents. In these three writ petitions, the legality and validity of the assessment order made by the second respondent-Commercial Tax Officer for the assessment years 2003-2004, 2004-2005 and 2005- 2006 dated 17.09.2005 as upheld by the first respondent-appellate authority vide order dated 29.11.2008 has been questioned. Sri C.R. Sridharan, learned counsel appearing for the petitioner submits that the writ petitions filed by the petitioner questioning the validity of the assessment orders of the second respondent being W.P.Nos.23124, 23125 & 23127 of 2005, have been dismissed and against the same, the petitioner preferred Special Leave Petitions before the Supreme Court, in Civil Appeal No.4083 to 4085 of 2007, and the same were also disposed of vide order dated 06.09.2007, which reads as under. Heard. Leave granted. Learned Counsel appearing for the appellant states that he wishes to challenge the vires of Section 5-E of the Andhra Pradesh General Sales Tax Act, 1957 (for short “the Act”). In view of this, the impugned order passed by the High Court is set aside reserving liberty with the appellant to challenge the vires of Section 5-E of the Act in addition to the validity of the Assessment Order. In case, the validity of Section 5-E of the Act is challenged, the High Court shall decide the matter afresh, in accordance with law. The appeals stand disposed of accordingly. He further submits that though vires of Section 5-E of the Andhra Pradesh General Sales Tax Act, 1957 (for short “the Act”) has not been questioned in the original writ petitions, but the same stood restored and therefore, the petitioner filed W.P.M.P.s seeking amendment of the writ prayer to question the validity of Section 5-E of the Act and the same have been allowed by a Division Bench of this Court vide order dated 2.04.2008. On the other hand, the learned counsel appearing for the respondents submits that admittedly the petitioner did not question the vires of Section 5-E in the said writ petitions and therefore, the Supreme Court granted liberty to the petitioner to challenge the vires of Section 5-E of the Act. There is no dispute that the petitioner questioned the vires of Section 5-E of the Act and the said writ petitions are pending before this Court. I am also of the opinion that as long as vires of Section 5-E of the Act is not set aside or stayed, the assessment proceedings cannot be stopped. The legality of the provisions shall take its own course. That is why the petitioner filed appeals before the first respondent-appellate authority and as the appellate authority did not grant stay of operation of the said order, the petitioner filed revisions and the same were also dismissed by the third respondent and against the same the petitioner filed W.P.No.5830 of 2006 and a Division Bench of this Court by order dated 23.03.2006 granted stay of collection of tax pending the appeal on condition of the petitioner therein depositing 50% of the tax. It is stated that the same has already been deposited. Ultimately, the appellate authority dismissed the appeals by the impugned order. The learned counsel appearing for the petitioner submits that the appeals have been disposed of without serving any notice on the ground that the notices sent to the place of the petitioner were returned with an endorsement that the firm has been shifted from the said place. It is stated that there is a change in the firm’s address and therefore, the notices could not be served. Having regard to the facts of the case, we are not inclined to express any opinion with regard to the said controversy. The petitioner is directed to intimate the change of address to the appellate authority, and the appellate authority shall verify whether the said notices have been sent to the changed address or not as it is a question of fact to be verified. Admittedly as against the orders of the appellate authority, further appeal lies to the Sales tax Appellate Tribunal under Section 21 of the Act. The learned counsel would further submit that as Section 5-E of the Act has been challenged, this writ petition may be admitted and posted along with the writ petitions pending before this Court. We are not inclined to accept the said request. As long as the vires of Section 5-E of the Act is not decided, it is for the Sales Tax Appellate Tribunal to consider the legality and validity of the said assessment order, as upheld by the appellate authority in accordance with law. Accordingly, these writ petitions are dismissed with liberty to file appeals against the order of the appellate authority within the statutory period. As and when the appeals are filed within the statutory period, there shall be stay of recovery of the disputed 50% of tax. ________________ (D.S.R.VARMA, J.) __________________ (V. ESWARAIAH, J.) 9th January, 2009 Js.