HONOURABLE MRS. JUSTICE T.MEENA KUMARI & HONOURABLE MS JUSTICE G. ROHINI WRIT PETITION No:26710 of 2007 Dated:28.01.2008 Between: M/s. Omicron Bio-Genesis Limited, Srinigar Cooony, Hyderabad, rep., by its Director K. Siva Prasad, and another. ..Petitioners And 1. The Commercial Tax Officer, Srinagar Colony Circle, Punjagutta Division, 5th Floor, Kushal Towers, Beside Chermas Abids, Hyderabad and others. ..Respondents. HONOURABLE MRS. JUSTICE T.MEENA KUMARI & HONOURABLE MS JUSTICE G. ROHINI WRIT PETITION No:26710 OF 2007 ORDER: (Per Hon’ble Smt. Justice T. Meena Kumari) The present writ petition is filed by the petitioners seeking to declare the proceedings in A.R.Sl.No.P/183/2007, dated 18.8.2007 and the assessment order of the 1st respondent in Rc.No.2654/2002- 2003/CST, dated 28.3.2006 as illegal and arbitrary and consequently, to set aside the same and to direct the 1st respondent to reconsider the assessment order, dated 28.3.2006 after considering the assessment order passed in Tamil Nadu. It is the case of the petitioners that the 1st respondent passed the assessment order dated 28.3.2006 in respect of the transactions carried out by the 1st petitioner’s autonomous independent branches situated outside the State of A.P. for the assessment year 2002-2003 and that the said sales assessed by the 1st respondent were already assessed by Tamilnadu State and therefore, the 1st respondent is not justified in levying the tax on such turnovers. Having aggrieved by the order of the 1st respondent, the petitioners preferred an appeal before the 2nd respondent. Along with the said appeal, the petitioners also filed an application seeking to dispense with the condition of pre- deposit. But, the 2nd respondent vide order dated 18.8.2007 rejected the appeal as not entertainable for failure to comply the condition of pre-deposit. Having aggrieved by the same, the present writ petition is filed by the petitioners. Heard the learned Counsel for the petitioners and the learned Special Standing Counsel for Commercial Tax and perused the material available on record. It is the contention of the learned Counsel for the petitioners that the 1st respondent proposed to levy tax mainly on a turnover relating to the sales made locally in the State of Tamilnadu and this turnover has already been assessed to tax in that State and that the purchase and sale transactions conducted are totally outside the State of A.P and that the levy of tax on such turn overs by the 1st respondent is illegal because there is no inter State sale at all. It is further submitted that on similar turn over, the 1st respondent for the assessment year 2003- 2004 has exempted the turnovers of very same autonomous branches with respect to similar sales outside the State. It is further contended that the disputed tax does not represent the tax leviable in this State and therefore, the 2nd respondent is not justified in rejecting the appeal on the ground of failure to comply with the condition of pre-deposit. On the other hand, the learned Standing Counsel contended that the petitioners claimed exemption on a turnover of Rs.24,66,31,839=00 towards sales made by its branches independently outside the state of A.P., without furnishing any documentary evidence except registration certificate, which is not conclusive evidence relating to the independent branch sales turn over outside the State and that the assessment orders passed by the Sales Tax Authorities of other States are not within the knowledge of the 1st respondent inasmuch as the petitioners did not file any documentary proof and in these circumstances, the 1st respondent is justified in levying the tax. But, insofar as assessment year 2003-2004 is concerned, the petitioners furnished the necessary evidence and therefore, the relief is granted. It is also contended that there is no such provision for waiver of pre-deposit for maintaining an appeal and that having knowledge of the same, the approach of the petitioners taking a stand that the disputed tax does not represent the tax leviable, is very absurd and therefore, the order of the 2nd respondent needs no interference. Having regard to the rival contentions raised by both the Counsel as to the levy of tax and the waiver of pre-deposit for maintaining the appeal and having considered the quantum of tax, without expressing any opinion on the merits of the case, We are of the opinion that the issue involved in this matter has to be adjudicated on its own merits, but not on mere technicalities. In this view of the matter, We feel it a fit case wherein the order of the 2nd respondent dated 18.8.2007 can be set aside and the appeal can be directed to be entertained, but subject to certain conditions. Accordingly, the order of the 2nd respondent dated 18.8.2007 is set aside and consequently, the appeal shall be entertained in accordance with law, subject to the condition of the petitioners depositing Rs.17,00,000/- (Rupees Seventeen Lakhs only) within a period of two weeks from the date of receipt of a copy of this order. Subject to the above direction, the writ petition is disposed of. No order as to costs. ________________________ Justice T. Meena Kumari _________________ Justice G. Rohini Date: 28th January, 2008 Nn/Gurc. HONOURABLE MRS. JUSTICE T.MEENA KUMARI & HONOURABLE MS JUSTICE G. ROHINI WRIT PETITION No:26710 OF 2007 (Order delivered by the Hon’ble Smt. Justice T. Meena Kumari) 28/01/2008