M/s. Sai Jaya Enterprises v. Division, Hyderabad

(per Hon’ble Sri Justice B.Prakash Rao) Heard Sri V.Bhaskar Reddy, learned counsel appearing for the petitioner and Sri A.V.Krishna Koundinya, Special Standing Counsel Commercial Tax, appearing for the respondents and at their request, the main appeal itself is taken up for disposal at the stage of admission. The petitioner, who is a proprietary concern and assessee for income tax, filed this writ petition, inter alia, aggrieved by the action of the second respondent herein, who is the appellate authority, in refusing to grant stay of recovery of the disputed tax and penalty for the tax period from 01.04.2005 and 31.03.2007 under the A.P.VAT Act, 2005. It appears, the case of the petitioner is to the effect that having regard to the substantial questions of law involved in the appeal, filed before the second respondent, which have to be gone into on merits, the appellate authority, who is the second respondent, ought to have granted stay.

Heard learned counsel appearing on either side and perused the material available on record. Since the main appeal filed before the second respondent-appellate authority is yet to be taken into consideration, we refrain from going into the questions raised by the learned counsel appearing on either side, across the bar. However, prima facie, we are of the the appellate authority-the second respondent ought to have granted stay by imposing certain conditions. As regards the penalty amount, it is submitted by learned counsel for the petitioner that though the order under challenge in the appeal before the second respondent-appellate authority states that a penalty notice is issued separately, however, under the very same order, penalty is quantified and was demanded, without their being issuance of any separate notice and separate order, as such. In view of the aforesaid circumstances, we are of the view that there shall be interim stay of all further proceedings, subject to condition that the petitioner deposits ½ of the disputed tax within a period of eight weeks from today.

We also make it clear, having regard to the facts and circumstances of the case, that there shall be interim stay as regards the payment of penalty pending disposal of the appeal before the second respondent-appellate authority. However, it is the authorities to proceed with finalization of the penalty proceedings. Subject to the above, the writ petition is disposed of. No costs. B.PRAKASH RAO, J

15.11.2008 Note: Issue wire at party’s costs. B/o __________________ ___________________ R.KANTHA RAO, J ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Commercial Tax Officer, Gowliguda Circle, Hyderabad. 2 The Appellate Deputy Commissioner (CT), Secunderabad Division, Hyderabad. 3 2CD copies