IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 20238 of 2008 Between: M/s. Sainath Agencies, Vinukonda, Represented by its Proprietor S.Abdul Hafeez S/o.Abdul Guntur District. ..... PETITIONER AND 1 The Joint Commissioner of Commercial Taxes, Office of Commissioner of Commercial Taxes, Commercial Taxes Complex, M.J. Road, Nampally, Hyderabad. 2 The Deputy Commissioner (CT), Guntur-II Division, Guntur. 3 The Commercial Tax Officer, Vinukonda, 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 will be pleased to issue an appropriate writ, order or direction particularly in the nature of Writ of Mandamus declaring the action of the 1st Respondent in rejecting the stay petition ﬁled seeking stay of the disputed tax of Rs.3,41,949/- for the assessment year 2003-04 pending appeal before Sales Tax Appellate Tribunal, Visakhapatnam by its order dated 22.07.2008 in CCT's Ref.No. LV (4)/521/200 as illegal arbitrary, unjust, improper and contrary to the judgment of the Sales Tax Appellate Tribunal delivered in T.A.No.816/05 and Batch dated 17.10.07 which is binding on the 1st Respondent as per the Full Bench Judgment of this Hon'ble Court reported in 136 STC P.586 and consequently forbear the 3rd respondent from taking any coercive steps pending disposal of the appeal before the Deputy Commissioner (CT), Guntur and grant such other relief or reliefs. Counsel for the Petitioner: MR.M.V.J.K.KUMAR Counsel for the Respondents: MR.K.RAJI REDDY(SPL.SC FOR CT) The Division Bench of this Court made the following order: THE HON'BLE MRS JUSTICE T.MEENA KUMARI A N D THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 20238 of 2008 O R D E R : {Per the Hon’ble Smt. Justice T. Meena Kumari } The writ petition is ﬁled to declare the action of the 1st Respondent in rejecting the stay petition ﬁled seeking stay of the disputed tax of Rs.3,41,949/- for the assessment year 2003-04 pending appeal before Sales Tax Appellate Tribunal, Visakhapatnam by its order dated 22.07.2008 in CCT's Ref.No. LV (4)/521/200 as illegal arbitrary, unjust, improper and contrary to the judgment of the Sales Tax Appellate Tribunal delivered in T.A.No.816/05 and Batch dated 17.10.07 which is binding on the 1st Respondent as per the Full Bench Judgment of this Hon'ble Court reported in 136 STC P.586 and to consequently forbear the 3rd respondent from taking any coercive steps pending disposal of the appeal before the Deputy Commissioner (CT), Guntur and grant such other relief or reliefs as this Court may deems ﬁt and proper in the circumstances of the case. 2. The brief facts of the case are that the petitioner is an assessee on the rolls of the third respondent. It is stated that the petitioner was assessed for the assessment year 2003- 04 by the third respondent on the sales eﬀected with reference to Soft Drinks purchased from M/s. Hindustan Coca Cola Private Limited. Soft drinks are taxable under Entry 21 of the VI Schedule at every point of sale. Under entry 21, the tax i.e., paid on the purchases made should be given set oﬀ while computing the tax that should be paid by the petitioner. It is stated that the manufacturer had contended at the time of his assessments that he had collected only rentals on the Crates and as such the purchase value as claimed by the petitioner includes the Crate rentals taxable at the rate of 8% under section 5-E of the AP General Sales Tax Act, basing upon the same, the assessing authority of the petitioner deducted the amount from the purchase value and only given credit to the amount as calculated by the assessing authority after deducting the value towards Crate rentals. It is further stated that entry 21 says that tax should be levied on the Bottled Soft Drinks and as such Soft drinks cannot be sold independently and no tax could be levied separately on the Crates by way of showing the value separately and as such the purchase value as claimed by the petitioner had to be taken into consideration in entirety. However, when the contention of the petitioner was not accepted by the assessing authority, an appeal had been ﬁled before the second respondent along with stay application and the appeal was dismissed. Challenging the same, the petitioner ﬁled a further appeal before Sales Tax Appellate Tribunal, Visakhapatnam and that the stay application before the ﬁrst respondent was dismissed on the ground that the assessing authority levying the tax on lease, rentals after deducting 25% of the value towards lease rentals as a purchase list and the audit reports ﬁled by the appellant observed that there was no break ups given by the petitioner and such observation is contrary to the ﬁndings of the Sales Tax Appellate Tribunal’s judgment in the case of the Distributors in TA.No. 816 of 2005 and batch, dated 17-10- 2007. 3. Heard the learned counsel for the petitioner as well as the learned Special Standing Counsel for the Commercial Tax. 4. We have gone through the impugned order and the facts and circumstances narrated by the petitioner in the aﬃdavit ﬁled in support of the petition and also the grounds raised by the learned counsel for the petitioner in the main writ petition. In the peculiar facts and circumstances, we deem it appropriate that there shall be an interim stay of the disputed tax of Rs.3,41,949-00 for the assessment year 2003- 04, subject to payment of 50% of the disputed amount within a period of eight weeks from the date of receipt of a copy of this order, after giving credit to the amounts, if any, already paid. However, it is also made clear that in pursuance of the disputed demand notice/order, the respondents shall not take any coercive steps against the petitioner, pending ﬁnalization of the appeal by the Sales Tax Appellate Tribunal, Visakhapatnam. 10. With these directions, the writ petition is disposed of at the stage of admission. No order as to costs. JUSTICE T. MEENA KUMARI. JUSTICE RAMESH RANGANATHAN. 17-9-2008. I s L NB : Furnish CC in two days. // BY ORDER // I S L ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KURR}