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 : 20263 of 2008 Between: M/s.Sri Balaji Wine Traders, Residing at 4-6-423/1, Medipalli Road, NTPC,Jyothinagar,Ramagundam, Karimnagar district, rep.by its Partner Smt.R.Chandrakala ..... PETITIONER AND 1 The Commercial Tax Officer, Osmangunj circle Hyderabad 2 The Deputy Commissioner (CT), Charminar Divison Hyderabad 3 The Secretary, SAles TAx Appellate Tribunal Andhra Pradesh, Hyderabad .....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 Certiorari or any other appropriate writ or order or direction quashing the order of the Sales Tax Appellate Tribunal, AP,Hyderabad in TA.No.267 of 2000 dated 14.2.2008 and further direct the Appeal be restored to the ﬁle of Sales Tax Appellate Tribunal, AP Hyderabad for consideration of the matter on merits and to pass such other orders as this Court may deems ﬁt and proper in the circumstances of the case. Counsel for the Petitioner: MR.BHASKAR REDDY VEMIREDDY Counsel for the Respondents: GP FOR COMMERCIAL TAX The Division Bench of this Court made the following order : THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 20263 of 2008 O R D E R : {Per the Hon’ble Smt. Justice T. Meena Kumari } The writ petition is ﬁled seeking Certiorari or any other appropriate writ or order or direction to quash the order of the Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad in TA.No.267 of 2000 dated 14.2.2008 and further to direct the Appeal be restored to the ﬁle of Sales Tax Appellate Tribunal, AP Hyderabad for consideration of the matter on merits and to pass such other orders 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 a ﬁrm comprising of seven partners. It is stated that the petitioner ﬁrm is a registered dealer under the provisions of the AP General Sales Tax Act, 1957 on the rolls of the ﬁrst respondent and it is engaged in the business in trading in liquor and beer. The ﬁrst respondent by his order dated 31-5-1993 assessed the petitioner ﬁrm for the year 1991-92 on a net turn over of Rs.6.93 lakhs after veriﬁcation of books of accounts etc. It appears that a notice was issued to the petitioner and the notice shows arrears of tax for the year 1991-92 at Rs.51,66,140-00. Accordingly the order dated 3-7-1997 was served on the petitioner on 18-12-1999 and on the basis of it, the appeal was ﬁled before the Sales Tax Appellate Tribunal on 16-2-2000 and the same was duly registered as TA.No. 267 of 2000. The dispute now pertains to enhancement of sale turn over by adding gross proﬁt of 35% to the purchase value on the ground that the sales are recorded at low ﬁgure when compared to the purchase price. 3. It is stated that the second respondent had issued a show cause notice dated 3-7-1997 and the same was served through the ﬁrst respondent. It is pertinent to mention here that the petitioner has closed down in the year 1993 itself due to take over of wholesale trade in liquor by AP Beverages Corporation, the petitioner discontinued its business. The ﬁrst respondent could not serve the notice in person. Therefore, he resorted to the service of show cause notice on 28-6-1997 by aﬃxture. Thereafter, as per the order of the second respondent, a notice was sent through registered post on the known place of business and the same was returned by the postal authorities with an endorsement “left”. 4. It is stated that the petitioner was not in receipt of show cause notice and could not participate in the revision. The second respondent had passed an ex-parte revision order on 03-7-1997 and sought to serve the same through the ﬁrst respondent. The matter was taken up for hearing before the Tribunal in the year 2008 as an identiﬁed matter. The State Representative before the Tribunal had ﬁled written submissions justifying the stand of the department and its action in seeking to serve the show cause notice and also the order. In those circumstances, the petitioner’s counsel before the Tribunal wanted to seek instructions from the petitioner for arguing the matter. The Tribunal by order dated 14- 2-2008 recorded the statement of the counsel and chose to dismiss the appeal for default on 14-2-2008. The Oﬃce of the Sales Tax Appellate Tribunal served the order of dismissal in appeal to the petitioner’s counsel on 6-3-2008. As the whereabouts of the petitioner or any of the partners were not known, no further steps could be taken in the matter for restoration of the appeal. Now the Deputy Commercial Tax Oﬃcer, Osmangunj Circle, Hyderabad a notice demanding the demand of arrears for the years 1991-92, 1992-93 and 193-94 and served the same to the petitioner. The oﬃce of the ﬁrst respondent traced out the deponent at residential address in Ramagundam for recovery of the demand. Immediately, the deponent got the matter veriﬁed and came to know that the appeal was dismissed for default on 14-2-2008. 5. It is stated that under Regulation 9 of the AP Sales Tax Appellate Tribunal Regulations, the application for restoration of application has to be ﬁled within thirty days from the date of communication of the order. As the order had been communicated on 05-3- 2008 on the petitioner’s counsel and as there is no power to condone the delay in ﬁling, the petitioners states that there is no alternative remedy. 6. The learned counsel for the petitioner relied the decision of Paramount Distilleries (P) Limited in TMP.No.416 of 2000 dated 14-7-2008 wherein it was held by the Tribunal that there is no power to condone the delay in ﬁling the application for restoration. 8. Heard the learned counsel for the petitioner as well as the learned Special Standing Counsel for the Commercial Tax. 9. 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 the order dated 14-2-2008 passed by the Sales Tax Appellate Tribunal, A.P. Hyderabad in TA.No.267 of 2000 is set aside and we direct that TA.No.267 of 2000 be restored on ﬁle forthwith and dispose of the same on merits and in accordance with law within a period of six months from the date of receipt of a copy of this order. 10. Under the above set of facts and circumstances, we deem it further appropriate that there shall be an interim stay of the disputed demand of Rs.51,67, 148-00 for the assessment year 1991-92, 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, AP Hyderabad. 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{TRK}