IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE NINTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE SMT JUSTICE T.MEENA KUMARI & THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 1977 of 2009 Between: M/s. Bismilla Traders, A Proprietary Concern Rep by its Proprietor, Fazul Rahim, S/o. Fazul Subur, R/o. D.NO. 20-112-30, Chengalraopet, Kothaagraharam, Visakhapatnam. ..... PETITIONER AND 1 The Appellate Deputy Commissioner, Commercial Taxes, Visakhapatnam. 2 The Dy. Commercial Tax Officer, VAT Management Unit-II, Kurupam Market Circle, Visakhapatnam. .....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 declaring the order dated 18-12-2008 in Appeal No. ASP/VAT/43/08-09 of Respondent No. 1 rejecting the stay petition of the petitioner pending appeal before Respondent No. 1 as illegal, arbitrary and violative of Article 14, 19 (1) (g) 300A of the constitution of India and consequently restrain the respondents from recovering a sum of Rs. 15,57,850/- towards balance tax from the petitioner as per order dated 29-10-2008 of Respondent No. 2. Counsel for the Petitioner: SRI M.S.RAMCHANDRA RAO Counsel for the Respondents: GP FOR COMMERCIAL TAX The Court made the following : THE HON'BLE SMT JUSTICE T.MEENA KUMARI & THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 1977 of 2009 ORDER: (Per Hon’ble Smt. Justice T. Meena Kumari) This writ petition is filed by the petitioner challenging the order dated 18.12.2008 in Appeal No.ASP/VAT/43/08-09 passed by Respondent No.1 rejecting the stay petition of the petitioner pending appeal and consequently, to restrain the respondents from recovering a sum of Rs.15,57,850/- towards balance tax from the petitioner. It is the case of the petitioner that against the assessment order passed by respondent No.2, an appeal has been preferred before respondent No.1 and an amount of Rs.2,22,550/- was deposited and along with the appeal, an application seeking stay of recovery of the balance disputed tax was filed, but the said application was dismissed by respondent No.1, vide order 18.12.2008. Having been aggrieved by the same, the present writ petition has been filed. Heard the learned Counsel appearing for the petitioner and the learned Government Pleader for Commercial Tax and perused the material available on record. It is the contention of the learned Counsel for the petitioner that the appeal preferred by the petitioner is pending before the 1st respondent and that an amount of Rs.2,22,550/-was paid towards tax and in these circumstances, if the stay is not granted and if the entire disputed tax is recovered, the very purpose of filing the appeal would be defeated. In the facts and circumstances of the case and in view of the fact that the appeal is pending before the 1st respondent, without expressing any opinion on the merits of the case, We feel it a fit case wherein stay can be granted, but subject to certain conditions. Accordingly, there shall be stay of recovery of the balance disputed tax, pending disposal of the appeal before the 1st respondent subject to the condition of the petitioner depositing 1/3rd of the disputed tax, within a period of eight weeks from today. However, it is made clear that the amount paid if any, shall be given credit to the above stipulated sum. Subject to the above direction, the writ petition is disposed of. No order as to costs. __________________________ Justice T. Meena Kumari _________________________ Justice C.V. Nagarjuna Reddy Date: 9th February, 2009 nn. THE HON'BLE SMT JUSTICE T.MEENA KUMARI & THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 1977 of 2009 (Order delivered by the Hon’ble Smt. Justice T. Meena Kumari) 09/02/2009