IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTEENTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No: 5119 of 2009 BETWEEN: M/s. Sri Saradamba Traders D.No.64/3, Etukuru Road, Guntur, Guntur District, rep. by its Partner M. Mallikarjuna Rao, S/o. Venkataramaiah, aged 42 Yrs. ... PETITIONER AND 1 The Deputy Commercial Tax Officer-I, Gandhi Chowk, Tenali, Guntur District. 2 The Joint Commissioner (CT) (Legal), Hyderabad. 3 The Commercial Tax Officer, Patnam Bazar, Guntur, Guntur District. ...RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring that, (a) Rule 59(4)(ii) of the AP VAT Rules in ultravires Section 2 (4) of the AP VAT Act and consequently to struck down the same; (b) the 1st respondent has no jurisdiction to pass the assessment order in respect of the petitioner and also the method adopted by the 1st respondent as arbitrary, illegal, violative of principles of natural justice and contrary to the provisions of the Act; (c) the action of the 2nd respondent in passing orders dated 25.07.2008 rejecting to grant stay without giving opportunity of hearing to the petitioner as arbitrary, illegal and contrary to the provisions of the Act and consequently grant stay of disputed tax, penalty and interest for the tax periods September, October, December, 2006 and October, 2007, pending disposal of appeal by the Sales Tax Appellate Tribunal, Additional Bench, Visakhapatnam in the interest of justice in setting aside the order dated 25.07.2008; and (d) to pass such other order or orders. Counsel for the Petitioner: MR.P.GIRISH KUMAR Counsel for the Respondents: GP FOR COMMERCIAL TAX The Court made the following: ORDER: (per Hon’ble Sri Justice Vilas V. Afzulpurkar) Petitioner is aggrieved by the dismissal of his application for stay, pending appeal before the Sales Tax Appellate Tribunal (STAT), questioning disputed tax, penalty and interest for the period September, October, December 2006 and October 2007 and assessment order passed by the first respondent, which is questioned by the petitioner and is the present subject matter of the appeal before STAT. 2. Petitioner filed an application for stay against the said composite order of the assessing authority levying tax, penalty as well as interest and the same came to be considered by the Joint Commissioner (CT) (Legal), Hyderabad. By order dated 25.07.2008, the same was communicated to the petitioner on 16.12.2008, whereunder the application for stay was rejected. 3. Learned counsel for the petitioner has raised several contentions with regard to the validity of the impugned order based on the prima facie case in his favour. 4. We have heard the learned Special Government Pleader. In view of the prima facie case made out by the petitioner and the fact that the appeal is pending before STAT, we deem it appropriate to dispose of this writ petition subject to the following directions: That there shall be stay of recovery of disputed tax, penalty as well as interest from the petitioner subject to (i) The petitioner depositing 50% of the disputed tax and (ii) 25% of the penalty imposed on him within a period of four (4) weeks from today. So far as the demand as to interest is concerned, the same shall remain stayed and shall be subject to the final orders that may be passed in the appeal by STAT. The amounts, if any, already paid by the petitioner as against disputed tax and penalty, shall be given credit. In default of fulfilling the conditions as above, the application for stay shall stand rejected. There shall be no order as to costs. ______________ V. ESWARAIAH, J _____________________ VILAS V. AFZULPURKAR, J March 16, 2009 Note: Furnish C.C. of the order by 18.03.2009. (B/o) DSK