M/S. Kumar Enterprises vs. The State Of Andhra Pradesh

HON’BLE SRI JUSTICE C.PRAVEEN KUMAR & HON’BLE SRI JUSTICE M. GANGA RAO

W.P. No.21979 of 2020

O R D E R:- (Per Hon’ble Sri Justice C.Praveen Kumar)

This writ petition is filed for the following substantive relief: “…..to issue a writ of Certiorari calling for the record of the CTD Order No.JCOZH3711200D60403, DATED 06.11.2020 OF THE Joint Commissioner (CT) Legal, Office of the Commissioner of Commercial Taxes, A.P. at Edupugallu near Vijayawada and set aside the same by granting stay of collection of disputed tax pending disposal of the appeal.”

The brief facts of the case are that the petitioner – M/s.Kumar Enterprises, which is engaged in the business of providing hospital equipment, was audited by the 2nd respondent – Commercial Tax Officer on 21.07.2016. Pursuant thereto, a show cause notice was issued on 22.11.2016 and an Assessment Order dated 10.02.2017 came to be passed for the period 01.04.2013 to 30.06.2016, levying VAT denying the input tax credit. Being aggrieved by the Assessment Order dated 10.02.2017, the petitioner preferred an appeal before the Appellate Deputy Commissioner along with an application seeking stay of recovery of the balance disputed tax by depositing statutory requirement of payment of the disputed tax. The Appellate Deputy Commissioner, vide order dated 30.01.2018, dismissed the appeal. Challenging the same, the petitioner preferred an appeal before the A.P. Value Added Tax Tribunal, Visakhapatnam along with an application for stay of collection of the disputed tax. The Joint Commissioner, vide impugned order 06.11.2020 rejected the application for grant of stay. Challenging the order dated 06.11.2020, the present writ petition is filed.

The learned counsel for the petitioner would contend that the petitioner has already deposited 50% of the balance disputed tax at the time of filing the appeal, as such, the question of paying some more

CPK,J & MGR,J WP_21979_2020

2 amount does not arise. He would also submit that since substantial amount has already been paid the authorities may not insist the petitioner on depositing any further tax and take steps for recovery of the balance disputed tax.

The same is strongly opposed by the learned Government Pleader for Commercial Taxes stating that the deposit of 50% of the balance disputed tax while filing the appeal is a statutory restriction, as such, the question of seeking blanket stay would not arise. He also pleads that the provisions of Section 33-6A of the Value Added Tax Act would become otiose in case the petitioner is not directed to pay amount while granting stay.

As seen from the record, since 50% of the disputed tax has already been paid by the petitioner and as the appeal is still pending adjudication before the A.P. Value Added Tax Appellate Tribunal, in the facts and circumstances of the case, we feel that it may not be proper on the part of the respondents to insist on the petitioner depositing balance of the disputed tax pending disposal of the appeal. Hence, the respondents are directed not to take any coercive steps against the petitioner for recovery of the balance disputed tax in case the petitioner has really deposited 50% of the disputed tax while preferring the appeal before the 3rd respondent - Appellate Deputy Commissioner. However, the A.P. Value Added Tax Tribunal, Visakhapatnam shall take steps for disposal of the appeal at the earliest.

With the above observations, the writ petition is disposed of. No order as to costs.

As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous. _________________ C.PRAVEEN KUMAR, J