Bet ween: Idea Cellular Limited v. State of Maharashtra [1] , that, since the very show cause notice

Bet ween: Idea Cellular Limited, a company incorporated under the Companies Act, 1956, having its Retistered Office at Suman T owers, Plot No.18, Sector.No.11,Gandhi Nagar-382011 and its Circle Office at K.L.K.Estate, 5-9-62, Fateh Maidan Road Hyderabad, rep by its General Manager- Finance, Mr. Sumar Kumar, S/o. Sri Rattan Chank Khullar. ..... PET IT IONER AND 1 T he Assistant Commissioner(Commercial T axes) Abids Division, Nampally, Hyderabad. 2 T he Commissioner of Commercial T axes, Andhra Pradesh, M.J.Road, Hyderabad. 3 Government of Andhra Pradesh, Rep By its Principal Secretary Reveue Department, A.P.Government Secretariat, Hyderabad. *T he parties are one and the same in all the W.Ps. .....RESPONDENT (S) 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, Order or direction more particularly one in the nature of Writ of Mandamus or any other appropriate writ, order or direction declaring (a) That the provisions of Entry 2 of Schedule IV to the A.P.Value Added Tax Act, 2005 as unconstitutional, insofar as the Respondents are purportedly resorting to levy VAT on the value of the SIM Cards, rechage coupons,. processing fees, activation fees and rentals, etc., collected by the Petitioner under the said Entry.; (b) That the Notice of Assessment No.TIN No.28930154555 dated 27/06/2008 for the period April 2005 to March, 2006 of the Respondent No.1, i.e., The Assistant Commissioner, (Commercial Taxes), Abids Division, Nampally, Hyderabad, for the period 2005-06, as illegal, void, non-est in law and wholly without jurisdiction; (c) consequently, restrain the Respondents from proceeding further pursuant to the aforesaid Notice of Assessment. Counsel f or t he Pet it ioner:MR.C.R.SRIDHARAN Counsel f or t he Respondent s: SPECIAL ST ANDING COUNSEL FOR COMMERCIAL T AX T he Co urt made the fo llo wing : HON’BLE MRS JUSTICE T.MEENA KUMARI AND HON’BLE MR JUSTICE RAMESH RANGANATHAN W.P.Nos.16041, 16042 AND 6043 OF 2008 COMMON ORDER: (per HON’BLE SRI JUST ICE RAMESH RANGANAT HAN) Since the issue involved in all the three writ petitions filed by Idea Cellular Ltd is the same, all the three writ petitions are being disposed of by a common order. Sri C.R.Sridharan, Learned Counsel for the petitioner would submit that similar writ petitions filed by other Cellular Companies have been admitted by this Court. He would contend, placing reliance on Siemens Limited v. State of Maharashtra [1] , that, since the very show cause notice issued by the 1st respondent is without jurisdiction, the petitioner is entitled to invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. Learned Special Government Pleader for Commercial Tax would submit that, in all the other cases where similarly placed Cellular companies had approached this Court, the order impugned was the final order of assessment and not a mere notice to show cause. Learned G.P. would further point out that, in all the said cases, interim stay was granted subject to the condition that the assessee deposits 1/3rd of the disputed tax. The fact that, in all other cases, the order impugned was the final assessment order and not the show cause notice is not in dispute. On being pointed out that the order under challenge, in the writ petition filed by other Cellular companies such as Airtel, Vodaphone, Reliance etc, were final orders of assessment, and not a show cause notice, and that even in those cases this Court had granted conditional stay subject to payment of 30% of the disputed tax, Sri C.R.Sridharan, Learned Counsel for the petitioner would submit that the petitioner’s case deserves a separate treatment unlike other cases and that, in this case, this Court should consider granting blanket stay without any conditions. We do not see any reason to make any distinction between the petitioner herein and the other similarly situated Cellular companies whose cases are pending on the file of this Court. Since, in all the other cases, the order under challenge is the final assessment order and as, in the present case, the petitioner has questioned the show cause notices, we do not see any reason to entertain the writ petitions at this stage. With regards the plea of jurisdiction and the judgment of the Supreme Court relied upon in support thereof, it needs no emphasis that it is open to the petitioner to raise all these contentions in their reply to the show cause notices. We have no reason to doubt that the assessing authority, who has issued the show cause notices, shall consider all the contentions raised by the petitioner in accordance with law while passing final orders of assessment. The writ petitions are dismissed. However, without costs. _____________________ T.MEENA KUMARI,J Date: 25-7-2008 Nn/gurc/Asp [1] (2006)12 SCC 33 ___________________________ RANGANATHAN,J