IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SIXTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 3868 of 2009 Between: M/s.Rajastan Marble Centre, No.1-88/22/1,Nagole ring Road Uppal, Hyderabad, rep.by its Proprietor Mr.G.Prabhakar Reddy S/o.G.Krishna Reddy ..... PETITIONER AND 1 The Joint Commissioner (CT) Legal, O/o.Commissioner of Commercial Taxes,Hyderabad 2 The Commercial Tax officer, Tarnaka Circle Hyderabad 3 The Regional Manager, APSRTC., Hyderabad 4 State of Andhra Pradesh, rep.by its Principal Secretary Revenue Department, Secretariat, AP 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 to issue a writ of mandamus or any other appropriate writ or order or direction in declaring (i) Rule 33-C(1) of APGST Rules as discriminative and hence violative of Article 14 of the Constitution of India and accordingly strike down the same ,(ii) the action of the 2nd respondent in demanding disputed sales tax of Rs.3,70,837/- for the assessment year 2004-05 against which the appeal is filed before the Sales Tax Appellate Tribunal and stay petition filed before the 1st Respondent as illegal, and arbitray, and consequently grant stay of collection of disputed sales tax or Rs.3,70,837/- pursuant to the revised assessment order dated 10.01.2008 passed by the 2nd respondent and pass Counsel for the Petitioner:MR.TEJPRAKASH TOSHNIWAL Counsel for the Respondent No.: GP FOR COMMERCIAL TAX The Court made the following : IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SIXTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 3869 of 2009 Between: M/s.Rajastan Marble Centre, No.1-88/22/1,Nagole ring Road Uppal, Hyderabad, rep.by its Proprietor Mr.G.Prabhakar Reddy S/o.G.Krishna Reddy ..... PETITIONER AND 1 The Joint Commissioner (CT) Legal, O/o.Commissioner of Commercial Taxes,Hyderabad 2 The Commercial Tax officer, Tarnaka Circle Hyderabad 3 The Regional Manager, APSRTC., Hyderabad 4 State of Andhra Pradesh, rep.by its Principal Secretary Revenue Department, Secretariat, AP 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 to issue a writ of mandamus or any other appropriate writ or order or direction in declaring the section 31(3)(a)(b) of the Act as discriminative and hence violative of ARticle 14 of the Constitution of India and accordingly struck down the same ,(ii) the action of the 2nd respondent in demanding disputed sales tax of Rs.6,85,330/- for the assessment year 2006-07 under the Act ,agaisnt which the appeal is pending before the Appellate Deputy Commissioner (CT) Secunderabad Division, Hyderabad and revision petition filed before the 1st respondent as illegal, and arbitray, and consequently grant stay of collection of disputed sales tax or Rs.6,85,330/- pursuant to the assessment order dated 11.11.2008 passed by the 2nd respondent and pass Counsel for the Petitioner:MR.TEJPRAKASH TOSHNIWAL Counsel for the Respondent No.: GP FOR COMMERCIAL TAX The Court made the following : IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SIXTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 3871 of 2009 Between: M/s.Rajastan Marble Centre, No.1-88/22/1,Nagole Ring Road Uppal, Hyderabad, rep.by its Proprietor Mr.G.Prabhakar Reddy S/o.G.Krishna Reddy ..... PETITIONER AND 1 The Joint Commissioner (CT) Legal, O/o.Commissioner of Commercial Taxes,Hyderabad 2 Commercial Tax officer, Tarnaka Circle Hyderabad 3 Regional Manager, APSRTC., Hyderabad 4 State of Andhra Pradesh, rep.by its Principal Secretary Revenue Department, Secretariat, A.P 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 to issue a writ of mandamus or any other appropriate writ or order or direction in declaring the section 31(3)(a)&(b) of the Act as discriminative and hence violative of Article 14 of the Constitution of India and accordingly struck down the same ,(ii) the action of the 2nd respondent in demanding disputed sales tax of Rs.4,71,002/- for the assessment year 2005-07 against which the appeal is pending before the Appellate Deputy Commissioner (CT) Secunderabad Division, Hyderabad and revision petition filed before the 1st respondent as illegal, and arbitray, and consequently grant stay of collection of disputed sales tax or Rs.4,71,002/- pursuant to the assessment order dated 11.11.2008 passed by the 2nd respondent and pass Counsel for the Petitioner:MR.TEJPRAKASH TOSHNIWAL Counsel for the Respondent No.: GP FOR COMMERCIAL TAX The Court made the following : Form-NIC-OGS/WP{TRK} HONOURABLE SRI JUSTICE V.ESWARAIAH AND HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.NOs.3868, 3869 & 3871 of 2009 COMMON ORDER (Per Hon’ble Sri Justice Vilas V. Afzulpurkar): All these writ petitions are filed questioning the validity of Rules 31 (3) (a) & (b) and 33-C (1) of A.P.G.S.T. Rules as discriminatory and violative of Article 14 of the Constitution of India and to declare the action of the 2nd respondent-Commercial Tax Officer, Tarnaka Circle, Hyderabad, as arbitrary and illegal. 2. As against the orders of the 2nd respondent dated 10-01-2008 in W.P.No.3868 of 2009, and dated 11-11-2008 in W.P.Nos.3869 and 3871 of 2009, the petitioner had preferred appeals before the Appellate Deputy Commissioner (CT), Secunderabad Division, Hyderabad, vide appeal Nos.S/129/2008-09, S/108/2008-09, and S/107/2008-09, respectively, and the said appeals came to be dismissed by order of the Appellate Deputy Commissioner. As against the same, the petitioner preferred appeals before the Sales Tax Appellate Tribunal (S.T.A.T.), Hyderabad. The disputed tax involved in the present cases is Rs.3,70,837/-, Rs.6,85,330/- and Rs.4,71,002/-, respectively. 3. We have heard the learned counsel for the petitioner and the learned Special Government Pleader for taxes. 4. The main contention urged by the learned counsel for the petitioner is that the provision, for grant of stay under the aforesaid impugned Rules, is available only in such of the cases, where pending appeal, there was a stay operating in favour of the appellant, either granted by the Appellate Deputy Commissioner or by the Joint Commissioner. But, in cases, where no stay was granted pending appeal and if further appeal is filed before the S.T.A.T., Hyderabad, there is no provision for grant of stay. The petitioner also contends that they have a substantial case to argue in appeals and the liability, raised against it, is totally un-called for. 5. Several contentions were raised with respect to prima facie case. However, we are of the opinion that the interest of the justice would be served by the following order: 6. The appeals preferred by the petitioner are pending before the S.T.A.T., Hyderabad. The contention of the petitioners, on merits of the appeal, prima facie, shows that the petitioners have a good case against the disputed tax, demanded from them. In a similar matter in W.P.No.3250 of 2009, dated 19-02-2009, we had considered similar circumstances and had granted stay pending appeal before the S.T.A.T., Hyderabad, subject to the petitioner depositing 50% of the disputed tax. 7. Following the said judgment and the reasons mentioned therein, we deem it appropriate to direct that there shall be stay pending appeals of the petitioner before S.T.A.T., Hyderabad, subject to the petitioner depositing 50% of the disputed amount of tax, in each of the cases, on or before 31-03-2009, after taking credit of the amount already paid towards disputed amount of tax. 8. So far as the question of validity of the impugned provision is concerned, learned counsel for the petitioner fairly submits that he is not pressing the same in this case and seeks liberty to raise it in an appropriate case. Liberty is granted accordingly. 9. Accordingly, all the writ petitions are disposed of as indicated above. There shall be no order as to costs. _________________________ JUSTICE V.ESWARAIAH _____________________________ JUSTICE VILAS V. AFZULPURKAR 26th February, 2009 Kvr