THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE RAMESH RANGANATHAN W.P.NO.18985 OF 2009 15-09-2009 BETWEEN; M/s Motorola India Private Limited, rep. by its Senior Specialist Finanance, Vivek Kotoch ...Petitioner vs. The Assistant Commissioner (CT) Legal and three others ...Respondents THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE RAMESH RANGANATHAN W.P.NO.18985 OF 2009 ORAL ORDER: (Per RR,J) The order of the 4th respondent dated 26-08-2009 rejecting th petitioner’s application for grant of stay of disputed tax pending disposal o the appeal before the 3rd respondent-Appellate Deputy Commissioner, i under challenge in this writ petition. The petitioner is a registered dealer on the rolls of the 2n respondent and is carrying on business of selling Cellular Phones etc. Th petitioner purchased pre-fabricated shelters and batteries from loca registered VAT dealers incurring VAT. They claimed input tax credit i respect of such purchase under Section 13 of the A.P.VAT Act, 2005. Th 1st respondent passed an order of assessment for the years 2005-2008 b issuing separate notices for each year i.e., 2005-06, 2006-07 and 2007-08 In the order of assessment dated 13-05-2009 pertaining to 2007-08, th petitioner’s claim for input tax credit to the extent of Rs.42,45,159/- wa disallowed. The assessing authority passed an order of assessmen determining the tax payable by the petitioner @ Rs.47,24,135/- whic includes the wrong excess credit claim of input credit tax of Rs.42,45,159/ The petitioner preferred an appeal to the 3rd respondent along with a application for stay and, on the stay application being rejected, the preferred a revision to the 4th respondent who, by order dated 26-08-2009 rejected the revision petition. The appeal preferred before the 3r respondent is said to be pending as on today. Sri S.Dwarakanath, learned counsel for the petitioner woul contend that the petitioner has merely shown input tax credit o Rs.42,45,159/- in its returns and has not claimed adjustment thereo towards the tax payable. Learned counsel would further submit that, even the order of assessment is preferred to be valid, it would only result in inpu tax credit available to the petitioner being reduced to zero (0) and that in n event could the petitioner be directed to pay tax to the extent of such inpu tax credit merely on the ground that they had shown it as available to them in their returns. Sri Balaji Varma, learned Standing Counsel for Commercial Taxes would contend that, since the assessment order is passed much after filin of the monthly returns, the petitioner could have, in the months subsequen to the assessment order, claimed the benefit of input tax credit and that th assessment order, passed by the 1st respondent, would only result in th petitioner having to pay the said amount and claim the benefit of input ta credit in future. We see no merit in this submission. It is only if the benefit o input tax credit has been claimed and, as a result, the petitioner has pai lesser tax than what they were required to pay, could the input tax cred wrongly claimed be adjusted and the petitioner asked to pay th differential amount. In the case on hand it is not in dispute that th petitioner has not adjusted input tax, available to their credit, towards th tax payable. In such circumstances, there shall be a stay of collection of th disputed tax, in so far as it relates to input tax credit, pending disposal o the appeal before the 3rd respondent-appellate authority. The petitione shall, however, pay the assessed tax of Rs.4,78,976/- within a period o three(3) weeks from today. Tax, if any, paid in this regard shall be give credit to. It is made clear that we have not expressed any opinion on th petitioner’s entitlement for input tax credit on pre-fabricated shelters an batteries as that is an issue pending adjudication before the appellat authority. The writ petition is disposed of accordingly. No order as to costs. ______________ GODA RAGHURAM,J __________________ RAMESH RANGANATHAN,J 15th SEPTEMBER 2009. Note: Issue CC as soon as Possible (B/O) TSNR