M/s.Bajaj Electricals Limited & Ors. v. State of Andhra to Pradesh[2], did not countenance

(per Hon’ble Sri Justice V.V.S.Rao) The petitioner, a dealer registered on the rolls of the first respondent, was subjected to revisional assessment by the second respondent for the year 2003-2004 in respect of the turnover towards High-Mast Lighting Systems (HMLS) provided to different customers. The petitioner’s plea that the transaction is a works contract under Section 5F of the Andhra Pradesh General Sales Tax Act, 1956 (the Act, for brevity) read with Rule 6(3)(ii) of the Andhra Pradesh General Sales Tax Rules, 1957 (the Rules, for brevity) was negatived. The second respondent held that supply of HMLS amounts to sale and accordingly levied tax. Being aggrieved, the petitioner preferred first appeal under Section 21 of the Act which is pending. The petitioner moved an application under Section 21(6) of the Act before the third respondent seeking stay of recovery of tax pending the appeal before the Sales Tax Appellate Tribunal (STAT).

By impugned order dated 08.03.2011 the same having been dismissed, the petitioner is before this Court invoking its extraordinary jurisdiction. The counsel for the petitioner made various submissions. We are, however, not inclined to deal with these submissions, as the appeal before the STAT is still pending. One of the submissions is that the same issue is already the subject matter of appeal before the STAT and, therefore, the revisional authority ought to have deferred exercising jurisdiction under Section 20(2) of the Act in view Section 20(2-A) of the Act. He also relies on Indo National Limited v. Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad[1]. The Full Bench therein, of which one of us (VVSR, J) was a member, held that when the issue or question is subject matter before the Appellate Tribunal, Section 20(2- A) of the Act bars exercise of appellate or revisional jurisdiction by the authorities concerned.

Indeed, the petitioner raised such a plea before the second respondent as well as the third respondent who, purporting rely on Hindustan Shipyard Limited v. State of Andhra Pradesh[2], did not countenance the petitioner’s submission. The legal position is not seriously disputed by the State. Therefore, prima facie, we are of the considered opinion that, when a similar issue is already lis pen dense before the STAT, whether or not the question whether the second respondent could have exercised revisional jurisdiction under Section 20(2) of the Act is doubtful in view of the clear language in Section 20(2-A) of the Act as interpreted by the Full Bench of this Court in Indo National. The counsel for the petitioner, across the bar, submits that his client has already deposited 25% of the tax demanded while preferring the appeal before the STAT. Taking the same into consideration, we direct that there shall be stay of recovery of tax on condition of the petitioner depositing 75% of the tax demanded duly giving credit to the amounts already paid, within a period of six weeks from today.

In default of which, this order, without any reference to this Court, shall be rescinded and it shall be open to the tax authorities to proceed with the recovery of the tax due. With the above observations, the writ petition shall stand disposed of. There shall be no order as to costs. ______________ (V.V.S. RAO, J) (RAMESH RANGANATHAN, J) ____________________________

15.04.2011 KH [1] 2004 136 STC 586 [2] 2000 119 STC 533