IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE NINTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION No.7282 of 2009 Between: M/s.Kaveri Elevators, No.10-174/1, Vasantapuri colony Malkajgiri, Hyderabad-500047 rep.by its Partner Mr.A.V.Joshi ..... PETITIONER AND 1 The Assistant Commissioner (CT) Audit , Saroornagar Division, Hyderabad 2 The Appellate Deputy Commissioner (CT), Hydrabad Rural Division, Hyderabad 3 The Additional COmmissioner,(CT) Legal Andhra Pradesh, Hyderabad 4 The Commercial Tax officer, Malkajgiri circle Hyderabad 5 The Deputy Commissioner (CT),.Saroornagar Division 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 a writ of mandamus or any other appropriate writ or order or direction:- a.to declare the Rule 59 of APVAT Rules ultravires section 2(4) of the APVAT Act since it travels beyond the scope of section 2(4) are enough the same and b.to set aside order of the 3rd respondent in CCTs.Ref.No.LIII(4)/803/2008 dated 28.2.2009 for the tax period 2006-07 under the APVAT Act 2005 as illegal, arbitrary, highhanded and consequently restrain the 4th respondent from enforcing the payment of the balance disputed penalty of Rs.61,758/- out of the total disputed penalty of Rs.82,344/- for the period 2006-07 as per the orders of the 1st respondent dated 16.7.2008 pending disposal of the appeals before the 2nd respondent. Counsel for the Petitioner:MR.BHASKAR REDDY VEMIREDDY Counsel for the Respondent No.: GP FOR COMMERCIAL TAX The Court made the following : THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION No.7282 of 2009 ORDER: (per the Hon’ble Sri Justice Sanjay Kumar) The petitioner suffered assessment orders for the years 2005-06 and 2007-08 under the APVAT Act, 2005 (for short “the Act”) and preferred appeals to the Appellate Deputy Commissioner (CT) Hyderabad Rural Division, Hyderabad. The said appeals are stated to be pending. While so, the Assistant Commissioner (CT) Audit, Saroornagar Division, Hyderabad, by notices dated 21-06-2008 imposed penalty upon the petitioner under Section 53(3) of the Act. Thereafter, the levy of penalty was confirmed at 25% of the tax levied vide proceedings of the Assistant Commissioner (CT) Audit, Saroornagar Division, Hyderabad, dated 16-07-2008. Aggrieved thereby, the petitioner filed appeals and sought for stay of recovery of the disputed penalty amount pending disposal of the appeals. However, the Appellate Deputy Commissioner (CT) Hyderabad Rural Division, Hyderabad, rejected the stay applications by orders dated 04-09-2008. The present writ petition is filed seeking to challenge Rule 59 of the APVAT Rules on the ground that the same is ultra vires Section 2(4) of the Act and a consequent direction is sought to interdict the 4th respondent, the Commercial Tax Officer, Malkajgiri Circle, Hyderabad, from enforcing the payment of the balance disputed penalty amount for the two financial years. At the time of hearing of the case, the learned counsel for the petitioner fairly conceded that the petitioner is not keen on pressing the case insofar as the validity of the impugned rule is concerned as its appeals are still pending. Taking note of the aforesaid submission, this writ petition is disposed of granting stay, pending disposal of the appeals, subject to the condition that the petitioner deposits 25% of the penalty amount levied, within four weeks from the date of receipt of a copy of this order. Any amount already paid/deposited by the petitioner shall be given due credit while computing the amount payable under the orders, dated 16-07-2008. There shall be no order as to costs. ________________ V.ESWARAIAH, J __________________ SANJAY KUMAR, J Date: 09-04-2009 Prv ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{TRK}