1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26.08.2011 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR W.P.(MD)No.9624 of 2011 Tvl.Vasudevan Metal Stores, represented by its Partner, B.Jothimani, No.12, Pandikanmai Swamy Street, Ramanathapuram. ... Petitioner Vs. 1.The Appellate Deputy Commissioner (CT) (FAC), Virudhungar. 2.The Additional Commercial Tax Officer, Ramanathapuram. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records on the file of the first respondent in S.P.No.28/2011 in A.P.No.VAT 46/2011 dated 20.07.2011 and quash the same in so far as the condition to furnish security for the balance tax of Rs.68,721/- and the entire penalty of Rs.7,202/- is concerned and further direct the first respondent to extend the stay till the disposal of the petitioner's appeal in A.P.No.VAT 46/2011. For Petitioner ... Mr.A.Chandrasekaran For Respondents 1 & 2 ... Mr.TR.Janarthanam, Addl. Govt. Pleader ORDER This writ petition has been filed by the petitioner for a writ of Certiorarified Mandamus to call for the records on the file of the first respondent in S.P.No.28/2011 in A.P.No.VAT 46/2011 dated 20.07.2011 and quash the same in so far as the condition to furnish security for the balance tax of Rs.68,721/- and the entire penalty of Rs.7,202/- is concerned and further direct the first respondent to extend the stay till the disposal of the petitioner's appeal in A.P.No.VAT 46/2011. 2. Heard Mr.A.Chandrasekaran, learned Counsel for the petitioner and Mr.TR.Janarthanam, learned Additional Government Pleader appearing for the respondents. 3. By consent, the writ petition itself is taken up for final disposal. 4. The petitioner was assessed to the tax of Rs.8,14,600/- of which, a sum of Rs.6,82,938/- has been paid leaving the balance of Rs.1,31,662/-. He was also imposed the penalty of Rs.7,202/-. The appeal was filed along with a stay petition. Even before the stay petition could be heard, the petitioner further paid 25% of the balance tax due under dispute leaving the sum of Rs.1,01,662/- towards tax and a https://hcservices.ecourts.gov.in/hcservices/ 2 sum of Rs.7,202/- as penalty. Insofar as the balance tax due and the penalty of Rs.7,202/-, the stay petition filed in S.P.No.28/2011 came to be ordered on 20.07.2011 directing the petitioner to file a Bank Guarantee for the entire balance of tax and the penalty on or before 19.08.2011 with a further direction that the Bank Guarantee could be alive for about six months. 5. The learned Counsel for the petitioner pleads that since the substantial tax has been paid and considering the prima facie case, the condition imposed on the petitioner to furnish the Bank Guarantee for the balance tax due and the entire penalty is an onerous condition, for which the petitioner will have to deposit the entire amount for the purpose of getting the Bank Guarantee. 6. The authority while passing the order in the stay petition has not been taken into consideration the substantial tax deposited by the petitioner. The levy of penalty is an issue that can be considered at the time of hearing of the appeal. The petitioner is justified in seeking a waiver of the deposit of the balance tax and penalty as substantial amount has already been deposited. Considering the fact that a sum of Rs.6,82,938/- has already been paid and that the petitioner has paid 25% of the tax due at the time of filing of the appeal and another 25% of the tax due in terms of the Appellate Authority's interim order and considering the financial hardship pleaded, also taking note of the balance of convenience, this Court is inclined to modify the order passed in stay petition to the effect that the petitioner shall submit a personal bond for the balance tax due and the entire penalty within a period of two weeks from today. The Appellate Authority is also directed to dispose of the appeal on its own merits in due course. 7. The writ petition is ordered with the above modification. No costs. Sd/- Assistant Registrar (AS) /True copy/ Sub Assistant Registrar To: 1.The Appellate Deputy Commissioner (CT) (FAC), Virudhungar. 2.The Additional Commercial Tax Officer, Ramanathapuram. +1CC TO M/S.A.CHANDRASEKARAN, ADVOCATE SR.29393 Rsb SR : 13.09.2011 : 2p/4c W.P.(MD)No.9624 of 2011 26.08.2011 https://hcservices.ecourts.gov.in/hcservices/