IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE NINETEENTH 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 : 3250 of 2009 Between: Zuari Cement Limited, Krishna nagar-516311 Yerraguntla (M),Kadapa District, rep.by its Senior Manager Accounts Mr.M.Ravi Kumar ..... PETITIONER AND 1 State of Andhra Pradesh, Rep.by its Secretary REvenue Department, Secretariat Buildings, Hyderabad 2 The Assistant Commissioner (CT) LTU, Kadapa Division Kadapa 3 State Bank of india., Yerraguntla ,Kadapa District rep.by its Branch Manager .....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 order or direction more particularly a writ in the nature of writ of mandamus declaring Rule 33-C(1) of APGST Rules as discriminatory and hence violative of Article 14 of the Constitution of India and accordingly strike down the same (ii) declaring the notice dated 3.2.2009 issued by the Assistant Commissioner (CT) (LTU Kadapa Division, Kadapa in so far as demanding payment of balance disputed tax within seven days as arbitrary,harsh oppressive and accordingly set aside the same and interdict the respondent No.2 from collecting the demand in pursuance of such notice during the pendency of appeal before the Sales Tax Appellate Tribunal, and (iii) declaring the garnishee notice issued by the 2nd respondent dated 12.2.2009 as illegal, arbitrary,and unreasonable and consequently set aside the same and pass Counsel for the Petitioner: MR.S.CHAKRAPANI Counsel for the Respondent No.2: 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.No.3250 of 2009 ORDER (Per Hon’ble Sri Justice Vilas V. Afzulpurkar): This writ petition is filed questioning the validity of Rule 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 consequential notice dated 03-02-2009, issued by the 2nd respondent-Assistant Commissioner (Commercial Taxes) LTU, Kadapa Division, Kadapa, as arbitrary and illegal. 2. As against the order of the 2nd respondent dated 29-03-2008, the petitioner had preferred appeals before the Appellate Deputy Commissioner (CT), Kurnool, vide appeal Nos.23/2008-09 (KDP), 22/2008-09 (KDP) and 21/2008-09 (KDP) and the said appeals came to be dismissed by order of the Appellate Deputy Commissioner, dated 26-12-2008. As against the same, the petitioner preferred appeals before the Sales Tax Appellate Tribunal. The disputed tax involved in the present case is Rs.5,10,91,823/-. 3. We have heard the learned senior counsel for the petitioner and the learned Special Government Pleader for taxes. 4. The main contention urged by the learned senior counsel for the petitioner is that the provision, for grant of stay under the aforesaid impugned Rule, 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 granted by the Joint Commissioner. But, in cases, where no stay was granted pending appeal and if further appeal is filed before the Sales Tax Appellate Tribunal (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 appeal preferred by the petitioner is pending before the S.T.A.T., Hyderabad. When the petitioner has earlier approached this Court, by order dated 17-11-2008, in W.P.No.22887 of 2008, this Court had granted stay pending appeal subject to the petitioner depositing 50% of the disputed amount of tax, after taking credit to the amount already paid towards disputed amount of tax. Now a further appeal is pending before the appellate Tribunal. 7. In the result, we deem it appropriate to continue the stay on the same conditions as earlier order passed by this Court in W.P.No.22887 of 2008, dated 17-11-2008, and we direct that there shall be stay pending appeal of the petitioner before S.T.A.T., Hyderabad, dated 12-02-2009, subject to the petitioner depositing 50% of the disputed amount of tax 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 senior 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, the writ petition is disposed of as indicated above. There shall be no order as to costs. _________________________ JUSTICE V.ESWARAIAH _____________________________ JUSTICE VILAS V. AFZULPURKAR 19th February, 2009 Kvr