IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWELFTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE P.V.SANJAY KUMAR WRIT PETITION NO : 17489 of 2008 Between: M/s. Sirpur Paper Mills Limited, Sirpur-Kaghaznagar, Adilabad District. rep. by its Asst. Manager (Liaison) D. Durga Prasad S/o.D.Ragagopala Rao Aged 47 years R/o. Hyderabad. ..... PETITIONER AND 1 The Assistant Commissioner (Commercial Taxes), LTU, Abids Division, Hyderabad. 2 The State of Andhra Pradesh, rep. by its Commissioner of Commercial Taxes, Commercial Tax Building, Nampally, Hyderabad. 3 The Appellate Deputy Commissioner (CT), Secunderabad Division, Hyderabad. .....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 of Mandamus, or any other appropriate Writ, order or orders, direction or directions declaring the action of the 3rd Respondent in rejecting the Stay Petition ﬁled by the Petitioner pertaining to the Appeal against the imposition of penalty by the 1st Respondent for the Assessment year 2006-07 vide Order dated 24.7.2008 without application of mind and in an unreasonable manner as illegal and unsustainable and to issue a consequential direction to the 1st Respondent not to proceed to recover the disputed amount of penalty from the petitioner and pass such other order or orders. Counsel for the Petitioner:MR.V.SRINIVAS Counsel for the Respondents.: SRI A.V. KRISHNA KOUNDINYA, SPECIAL STANDING COUNSEL FOR COMMERCIAL TAX The Court made the following : THE HON'BLE SMT JUSTICE T.MEENA KUMARI & THE HON'BLE SRI JUSTICE P.V. SANJAY KUMAR WRIT PETITION NO : 17489 of 2008 ORDER: (Per Hon’ble Smt. Justice T. Meena Kumari) This writ petition is ﬁled by the petitioner seeking to declare the action of the 3rd Respondent in rejecting the Stay Petition vide Order dated 24-07-2008, as illegal and unsustainable and to issue a consequential direction to the 1st Respondent not to proceed to recover the disputed amount of penalty from the petitioner. The main grievance of the petitioner is that against the order passed by the 1st respondent imposing penalty for the assessment year 2006-07, the petitioner has preferred an appeal before the 3rd respondent and along with the said appeal, the petitioner also ﬁled a stay petition. But, the 3rd respondent rejected the stay petition on 24.7.2008. Taking advantage of the same, the 1st respondent issued a demand notice dated 5.8.2008 demanding payment of the penalty. Having aggrieved by the same, the present writ petition has been filed by the petitioner. Heard the learned Counsel appearing for the petitioner and the learned Special Standing Counsel for Commercial Tax and perused the material available on record. It is the contention of the learned Counsel for the petitioner that an appeal as to the disputed penalty is pending before the 3rd respondent and at this juncture, refusal of stay and consequent notice of the 1st respondent would defeat the very purpose of ﬁling the appeal and apart from that, when the application has been filed seeking to stay the recovery of the penalty, the 3rd respondent has passed the order as if stay is rejected for collection of the disputed tax. Therefore, the respondents may be restrained from collecting the penalty in question pending disposal of the appeal. On the other hand, the learned Standing Counsel fairly conceded that it is a mistake that has crept in the order inadvertently while considering the application for stay the collection of the penalty. A perusal of the order impugned goes to show that as a matter of fact, the application has been ﬁled for stay of penalty whereas the authorities have rejected the stay for collection of the disputed tax. Even otherwise, the order impugned is ambiguous as to the consideration of the application i.e., whether the order impugned relates to the application for stay of disputed tax or the application for stay of penalty. In the facts and circumstances of the case and in view of the fact that the appeal is pending before the 3rd respondent as to the disputed penalty, without expressing any opinion on the merits of the case, We feel it a ﬁt case wherein the matter can be remanded to the 3rd respondent to pass orders afresh on the application for stay of collection of penalty, in accordance with law. Accordingly, the order impugned herein is set aside and the matter is remanded to pass orders afresh, after aﬀording an opportunity of hearing to the petitioner, within a period of two weeks from the date of receipt of a copy of the Order. Subject to the above direction, the writ petition is allowed. No order as to costs. __________________________ Justice T. Meena Kumari _________________________ Justice P.V. Sanjay Kumar Date: 12th August, 2008 Nn/gurc THE HON'BLE SMT JUSTICE T.MEENA KUMARI & THE HON'BLE SRI JUSTICE P.V. SANJAY KUMAR WRIT PETITION NO : 17489 of 2008 (Order delivered by the Hon’ble Smt. Justice T. Meena Kumari) 12/08/2008