IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SIXTEENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE THE CHIEF JUSTICE SRI ANIL R. DAVE AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 12392 of 2009 Between: Bharat Sanchar Nigam Limited, Rep. by its Chief General Manager (Telecom), A.P. Circle, Doorsanchar Bhavan, Nampally, Hyderabad. ..... PETITIONER AND 1 The Appellate Deputy Commissioner (CT), Government of Andhra Pradesh, Secunderabad Division, Hyderabad. 2 The Assistant Commissioner (CT) LTU, Abids Division, 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 calling for the records relating to the order in Appeal No.GI.A/281/08/V, dated 27.01.2009 passed by the Appellate Deputy Commissioner, Secunderabad Division, Hyderabad, the 1st respondent herein and quash the same and direct the 1s respondent to entertain the appeal and dispose it off expeditiously. WRIT PETITION NO : 12399 of 2009 Between: Bharat Sanchar Nigam Limited, Rep. by its Chief General Manager (Telecom), A.P. Circle, Doorsanchar Bhavan, Nampally, Hyderabad. ..... PETITIONER AND 1 The Appellate Deputy Commissioner (CT), Government of Andhra Pradesh, Secunderabad Division, Hyderabad. 2 The Assistant Commissioner (CT) LTU, Abids Division, 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 calling for the records relating to the order in Appeal No.GI.A/289/2008/V, dated 27.01.2009 passed by the Appellate Deputy Commissioner, Secunderabad Division, Hyderabad, the 1st respondent herein and quash the same and direct the 1st respondent to entertain the appeal and dispose it off expeditiously. WRIT PETITION NO : 12403 of 2009 Between: Bharat Sanchar Nigam Limited, Rep. by its Chief General Manager (Telecom), A.P. Circle, Doorsanchar Bhavan, Nampally, Hyderabad. ..... PETITIONER AND 1 The Appellate Deputy Commissioner (CT), Government of Andhra Pradesh, Secunderabad Division, Hyderabad. 2 The Assistant Commissioner (CT) LTU, Abids Division, 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 calling for the records relating to the order in Appeal No.GI.A/291/08/V, dated 27.01.2009 passed by the Appellate Deputy Commissioner, Secunderabad Division, Hyderabad, the 1st respondent herein and quash the same and direct the 1s respondent to entertain the appeal and dispose it off expeditiously. Counsel for the Petitioner: MR. E. MANOHAR, SENIOR COUNSEL, APPEARING ON BEHALF OF MR. R. S. MURTHY Counsel for the Respondents: SRI A.V. KRISHNA KOUNDINYA, (SPECIAL STASNDING COUNSEL FOR COMMERCIAL TAX) The Court made the following : COMMON ORDER: (per Sri Ramesh Ranganathan, J) At the request of Sri E. Manohar, learned Senior Counsel appearing for the petitioner and Sri A.V. Krishna Koundinya, learned Special Standing Counsel for Commercial Taxes, all the three writ petitions are taken up for final disposal at the stage of admission. Since the parties are common and the relief sought for is similar, all the three writ petitions are heard together and are being disposed of by this common order. For the purpose of disposal of all the three writ petitions, it would suffice if the facts in Writ Petition No.12392 of 2009 are taken note of. An assessment order was passed whereby the petitioner was required to pay tax of Rs.73,31,57,824/-. Aggrieved by a part of the order, in so far as it related to levy of sales tax on the sale of SIM cards, fixed monthly charges, lease rentals on leased lines and recharge coupons, the petitioner filed Writ Petition Nos.20931, 20989 and 20990 of 2008. This court, while admitting all the said writ petitions, granted interim stay of all further proceedings by order dt.30.9.2008 subject to the condition that the petitioner deposits a sum of Rs.2.00 crores within a period of six weeks. With respect to items 1 to 3 of the assessment order – (i) sale of tender forms; (ii) sale of modems; and (iii) sale of scrap – the petitioner had not challenged the same in the afore-mentioned writ proceedings and, instead, had preferred an appeal before the Appellate Deputy Commissioner (CT). Along with the appeal the petitioner, however, neither enclosed a copy of the original assessment order (since the original order was filed along with the writ petition), nor did they pay 12.5% of the tax as pre-deposit for entertaining the appeal contending that certain amounts were required to be refunded to them by the respondent authorities and the said amounts should be adjusted towards pre-deposit. As no orders of stay had been passed during the pendency of the appeal, a notice of demand was issued to the petitioner on 16.10.2008 calling upon them to pay tax on these three items for Rs.1,14,71,184/-. Pursuant thereto, the petitioner sent a letter dt.18.10.2008 enclosing a post-dated cheque bearing No.178553, dt.20.10.2008, for the said amount of Rs.1,14,71,184/-. It is not in dispute that the cheque was encashed by the respondents on 22.10.2008. The Appellate Deputy Commissioner, by the impugned order dt.27.1.2009, rejected the petitioner’s appeal on the ground that there cannot be two cases against the same assessment order in two different foras and that the petitioner had failed to pay 12.5% of the disputed tax as pre-deposit. The appellate authority also held that the amount allegedly due to the petitioner could not be adjusted against the amount required to be paid as pre-deposit. In so far as the question of the petitioner having invoking two parallel remedies for the same relief is concerned, the Appellate Deputy Commissioner was in error in as much as what was under challenge in the Writ Petitions before this Court was the levy of sales tax on the sale of SIM cards, fixed monthly charges, lease rentals on leased lines and recharge coupons. The petitioner did not prefer any appeal in so far as these items are concerned and had preferred an appeal before the Appellate Deputy Commissioner only on the items relating to sale of tender forms, sale of modems and sale of scrap, which items were not the subject matter of challenge in the Writ Petitions filed before this Court. Since the appeal preferred was only for a part of the assessment order, which was not the subject matter of challenge in the writ petitions, the petitioner cannot be said to have invoked two parallel remedies for the very same dispute. The Appellate Deputy Commissioner was, therefore, in error in holding that the petitioner had invoked two parallel remedies for the same issue. In so far as payment of 12.5% of the disputed tax as pre-deposit is concerned, it is not necessary for us to examine whether the petitioner could have sought adjustment of the said amount from out of the amount allegedly liable to be refunded to them in as much as the petitioner had subsequently paid the entire tax due on the items which were the subject matter of appeal. Since the entire disputed tax has already been paid, even before the impugned order was passed, the appeal preferred by the petitioner ought not to have been dismissed on the ground of failure to make payment towards pre-deposit. The impugned orders are, therefore, set aside. The Appellate Deputy Commissioner (CT) shall hear the appeals of the petitioner afresh on merits and pass orders in accordance with law within a period of four months from today. The Writ Petitions are, accordingly, allowed. However, in the circumstances, without costs. ______________ ANIL R. DAVE, CJ _______________________ RAMESH RANGANATHAN, J 16-07-2009 bnr