IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FOURTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 4051 of 2009 Between: Mody Ford, (a registerd A.P., VAT Dealer a Bearing No.T.I.N NO. 28020246024) 5-3-372, R.P. Road Secunderabad, Rep by its irector, Nihar K.Mody ..... PETITIONER AND 1 The Government of Andhra Pradesh, Commercial Taxes Department, Secretariat, Hyderabad, Rep by its Principal Secretary 2 The Asst. Commissioner (Commercial Taxes-III) Central Audit Unit, O/o. The Commissioner (C.T) Nampally, Hyderabad. 3 The Appellate Deputy Commissioner (CT) Secunderabad Division, Hyderabad. 4 The Joint Commissioner(CT), Legal Office of the Commissioner of Commercial Taxes, Andhra Pradesh, 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, direction order or writ more particularly one in the nature of writ of certiorari calling for records relating to order passed by the 4th respondent in CCT's Ref.No.L.V (1)/64/2009, dated 16-2-2009 affirming the orders passed by the Respondents No.3 in appeal No.S/91 A/2008-2009/V, dated 29-11-2008, refusing to grant stay of collection of disputed tax of Rs.17,70,635/- for the assessment year 2006-2007 as arbitrary and illegal and quash the same Counsel for the Petitioner: MR.S.SRI RAM Counsel for the Respondents: Sri Krishna Kaundinya, SC for Commercial Taxes The Court made the following : ORAL ORDER: (Per Sri Anil R. Dave, CJ) Rule. Service of Rule is waived by Sri Krishna Kaundinya, learned Special Standing Counsel appearing for the respondents. At the request of the learned advocates, the petition is finally heard today. 2. In this petition, order dated 16-02-2009 passed by the Joint Commissioner (CT) Legal has been challenged. 3. The facts giving rise to the present litigation, in a nutshell, are as under: The petitioner had challenged the validity of assessment order dated 29-09-2008 before the appellate authority. At the time of filing the appeal, an application had also been submitted for stay of recovery of tax, during the pendency of the appeal. The stay application had been rejected and, therefore, a revision application had been filed against the order of rejection. The said revision application has also been rejected by virtue of the impugned order dated 16-02-2009. 4. The case of the petitioner is that he is hopeful of succeeding in the appeal and, therefore, during the pendency of the appeal, the amount of tax sought to be recovered should not be recovered. He has a prima facie case in his favour and, therefore, it has been submitted that stay pending appeal with regard to the recovery of tax should have been granted. 5. It has been submitted by the learned advocate appearing for the petitioner that certain amount which could not have been considered as consideration for sale has been included in the sale by the assessing officer. He has given certain instances whereby he has made out a case to show that amount recovered from the customers for rendering certain services has also been included in sales. 6. On the other hand, the learned Special Standing Counsel relying upon the definition of ‘sale’ has submitted that the assessing officer has passed just and proper order and, therefore, the petitioner has no chance of succeeding before the appellate authority. 7. Both the learned advocates have submitted that we may not give final pronouncement on the merits of the case because the appeal has not yet been heard. 8. After hearing the learned advocates, prima facie, we feel that the petitioner has made out a case for getting some relief. Certain items, in our opinion, could not have been included in sales. 9. Upon perusal of the papers, we prima facie, believe that some relief should have been given by the revisional authority while entertaining the stay application. 10. In the circumstances, we direct stay of recovery on condition that one-third of the amount sought to be recovered be paid by the petitioner within three weeks from today and on that condition, implementation of the impugned recovery proceedings is stayed. The amount paid so far shall be given credit to while calculating one-third amount of tax. We further clarify that the observations made hereinabove are prima facie observations which need not be looked into by the appellate authority while deciding the appeal finally. 11. For the aforesaid reasons, the petition is partly allowed with no order as to costs. ______________________________ ANIL R. DAVE, CJ _______________________________ RAMESH RANGANATHAN, J 04th March, 2009 ks