[2009) 1 S. C.R. 1137

MIS. PENNAR INDUSTRIES LTD.

STATE OF A.P. & ORS. (Civil Appeal NO. 820 of 2009)

FEBRUARY 9, 2009 B

[DR. ARIJIT PASAYAT AND ASOK KUMAR

GANGUL Y, JJ] +

Interim order- Demand - Pre-deposit of 50% of disputed tax as condition to grant stay - Held: While granting stay, c pending disposal of the matters, though discretion is available, same has to be exercised judicially - Petitions for stay should not be disposed of in a routine manner - Forum! authority should not pass an order which cannot be sustained on the touchstone of fairness, legality and public interest - D Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief can be given - On facts, appellant deposited Rs. 60 lacs as directed by Supreme Court - Writ petition was heard and judgment was E reserved - In the peculiar circumstances of the case till the disposal of the writ petition, there shall not be any further deposit -Tax/Taxation - Andhra Pradesh Tax on Entry of Goods into Local Areas Act, 2001.

The appellant has challenged the order of High Court F

directing payment of 50% of the disputed tax as condition for grant of interim stay.

Disposing of the appeal, the Court G HELD: 1. While granting stay pending disposal of the matters, though discretion is available, the same has to be exercised judicially. It is true that on merely establishing a prima facie case, interim order of

1137 H

A protection should not be passed. But if on a cursory

glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter B unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. The forum/authority c should not pass an order which cannot be sustained on the touchstone of fairness, legality and public interest.

Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief

0 can be given. [Paras 5 and 7) [1140-B; 1140-D-G)

*Sil/iguri Municipality and Ors. v. Amalendu Das and Ors.

AIR 1984 SC 653; Mis Samarias Trading Co. Pvt. Ltd. v. S.

Samuel and Ors. AIR 1985 SC 61 and **Assistant Collector of Central Excise v. Dunlop India Ltd. AIR 1985 SC 330, E referred to

2. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in *Siliguri Municipality and **Dunlop India cases without F analysing factual scenario involved in a particular case. [Para 8) [1140-G-H]

3. This court had directed on 10.12.2007 to deposit Rs. 60 lacs with assessing officer. It is not in dispute that amount was deposited. It is pointed out for the appellant G that the writ petition was heard and the judgments are awaited. In the peculiar circumstances of the case, till the disposal of the writ petition, there shall not be requirement for any further deposit. [Paras 10 and 11)

[1141-D-E] H

PENNAR INDUSTRIES LTD. v. STATE OF A.P. & ORS. 1139

Case Law Reference:

AIR 1984 SC 653

AIR 1985 SC 61

AIR 1985 SC 330

referred to

referred to

referred to

Para 6

Para 6

Para 6

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 820 of 2009 .

From the final Judgment and Order dated 4.10.2007 of

the High Court of Andhra Pradesh at Hyderabad in W.P. No. c 20765 of 2007.

K.V. Bharathi Upadhyaya for the Appellant.

I. Venkatnarayana, Manoj Saxena, Rajneesh Kr. Singh, Rahul Shukla and T.V. George for the Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division E Bench of the Andhra Pradesh High Court granting partial stay of realization of demand raised against the appellant. Following order was passed by the High Court:

"On payment of 50% of the disputed tax within a period of F six weeks from today by the petitioner, there shall be interim stay as prayed for. The amount already paid shall be given credit to."

3. In support of the appeal, learned counsel for the appellant submitted that appellant is a sick company and G therefore the High Court should not have directed payment of the amount as directed.

4. Learned counsel for the respondent-State on the other hand submitted that AP. Tax on Entry of Goods into Local H

A Areas Act, 2001 (in short the 'Act') clearly permits the levy. In

revenue matters this Court should not interfere.

5. Principles relating to grant of stay pending disposal of the matters before the concerned forums have been considered in several cases. It is to be noted that in such matters though 8 discretion is available, the same has to be exercised judicially.

6. The applicable principles have been set out succinctly in Silliguri Municipality and Ors. v. Amalendu Das and Ors. (AIR 1984 SC 653) and Mis Samarias Trading Co. Pvt. Ltd.

C v. S. Samuel and Ors. (AIR 1985 SC 61) and Assistant Collector of Central Excise v. Dunlop India Ltd. (Al R 1985 SC 330).

7. It is true that on merely establishing a prima facie case,

0 interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequences flowing from the order requiring the assessee E to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which • F cannot be sustained on the touchstone of fairness, legality and

public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief can

be given.

8. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality and Dunlop India cases (supra) without analysing factual scenario involved in a particular case.

, PENNAR INDUSTRIES LTD. v. STATE OF A.P. & ORS. 1141

[DR. ARIJIT PASAYAT, J.)

9. It appears that this Court by order dated 10.12.2007 A passed the following order:

"Issue notice.

Without prejudice to the claims involved, let the 8 petitioner deposit a sum of Rs.60,00,000/- i.e.

Rs.23,00,000/- , Rs.7,00,000/- and Rs.30,00,000/- in respect of the demands amounting to about Rs.90,00,000/ -, Rs.22,00,000/- and Rs.1,06,00,000/- within a period of three months with the assessing officer.

Realization of the balance shall be stayed if the deposit is made, as directed."

10. It is not in dispute that the aforesaid amounts have been deposited. It is pointed out by learned counsel for the appellant 0 that the writ petition has been heard and the judgments are awaited.

11. In the peculiar circumstances of the case we direct that till the disposal of the writ petition, there shall not be requirement for any further deposit. It is made clear that by giving this E protection we are not expressing any opinion on the merits of the case.

12. The appeal is disposed of accordingly.

D.G.

Appeal disposed of.