THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 3036 of 2008 Between: M/s. Sri Radhakrishna Transport, Door No.69-30-2, Gandhipuram, East Godavari District, rep. by its Managing Partner M. Vijay Kumar, S/o. M. Radhakrishna Murthy ..... PETITIONER AND 1 The Assistant Commissioner of Commercial Taxes (LTU & Int.), Kakinada And others. .....RESPONDENTS THE HON'BLE SMT. JUSTICE T. MEENA KUMARI AND THE HON’BLE MS. JUSTICE G. ROHINI WRIT PETITION No.3036 of 2008 ORDER : (Per Hon’ble Smt. Justice T. Meena Kumari) Heard the learned counsel appearing for the petitioner and Sri K. Raji Reddy, Special Standing Counsel for Commercial Taxes. The present writ petition is filed by the petitioner seeking for a Writ of Mandamus to declare the action of the second respondent in rejecting the stay petition filed by the petitioner vide order dated 29.1.2008 as arbitrary and illegal and consequently to grant stay of collection of the disputed tax of Rs.5,13,017/- for the assessment year 2004-2005 under the A.P. General Sales Tax Act, 1957, pending disposal of the appeal filed by it before the 3rd respondent. The petitioner is engaged in the business of transportation of goods. While so, it entered into contract with M/s. Oil & Natural Gas Corporation of India, for transportation of crude oil and High Speed Diesel Oil from the stock point to various places through oil tankers. For the said purpose, the petitioner pressed into service oil tankers in which oil would be transported. According to the petitioner the transportation charges are payable upon the actual quantity of the oil transported and the distance to which the oil is transported. The entire maintenance of the tankers and its crew is the responsibility of the petitioner. It is the case of the petitioner that the transport charges are not taxable under the Andhra Pradesh General Sales Tax Act, 1957 (“for short the Act”) and that the petitioner is not a dealer carrying on business under the Act; as such, it does not require any registration under the provisions of the Act. It is its further case that the petitioner has not registered itself as a dealer under the Act and did not file any returns under the Act. While so, on 25.7.2007, the 1st respondent passed an assessment order levying tax of Rs. 513,017/-. Petitioner alleges that it is not a dealer under the Act; that it has not collected any taxes from its customers and therefore, it cannot be fastened with the huge liability of tax. Aggrieved by the order of the assessing authority, it also preferred an appeal before the Appellate Deputy Commissioner of Commercial Taxes, Visakhapatnam, the third respondent herein. Along with the appeal, it also filed an application seeking stay of collection of the disputed tax. The third respondent, through order dated 11.9.2007, dismissed the stay application. Aggrieved by the same, he filed a revision petition before the Joint Commissioner (CT), Legal, the 2nd respondent herein seeking stay of collection of the disputed tax. The 2nd respondent, through the impugned order dated 29.1.2008, rejected the same. It is stated that in the meantime, the 1st respondent issued garnishee notice under Section 29 of the Andhra Pradesh Value Added Tax Act, 2005 to the ONGC for recovery of the disputed tax. Hence, the present writ petition. Leaned counsel for the petitioner contends that even when the appeal filed against the order of the 1st respondent is pending before the 3rd respondent, the 2nd respondent is not justified in rejecting the stay application. He, therefore, prayed that the writ petition be allowed and the impugned order be set aside. We have gone through the record. We feel that ends of justice would have been met if stay was granted pending appeal subject to deposit of certain amount. Accordingly, there shall be stay of recovery of the disputed tax pending disposal of the appeal before the 3rd respondent subject to the condition of the petitioner depositing 25% of the disputed tax within a period of six weeks from today. However, in the event of failure to deposit one fourth of the disputed tax within the time stipulated above, the impugned order shall stand operative. The deposit of amount shall be without prejudice to the rights of the petitioner in the appeal. If any amount has already been paid by the petitioner, the same shall be given credit to. The Writ Petition is accordingly disposed of. No costs. ___________________ T. MEENA KUMARI,J DATE: 15th February, 2008 ______________ G. ROHINI, ,J Note: Furnish c.c. by 20.2.2008 B/o pnb