Andhra Pradesh High Court - Amravati
M/S. Kumar Enterprises, vs The State Of Andhra Pradesh, on 30 November, 2020
Author: K Suresh Reddy
Bench: K Suresh Reddy
THE HON'BLE SRI JUSTICE A.V. SESHA SAI
AND
THE HON'BLE SRI JUSTICE K.SURESH REDDY
Writ Petition No.22346 of 2020
ORDER:
Heard Sri Sai Gangadhar Chamarty, learned counsel for the petitioner and Sri T.C.D. Sekhar, learned Government Pleader for Commercial Tax appearing for the respondents.
2. Present Writ Petition is filed challenging the Order passed by the Joint Commissioner (CT) Legal, Office of the Commissioner of Commercial Taxes, Andhra Pradesh at Edupugallu, Vijayawada, vide Order No.JCOZH3711200D22484, dated 06.11.2020. By way of the said Order, the Joint Commissioner dismissed the stay application filed by the petitioner herein for the balance of disputed penalty of Rs.26,087/- out of the total disputed penalty of Rs.52,179/- for the tax period from 2013-14 to 2016-17 under Andhra Pradesh VAT Act, 2005 (for short "the VAT Act, 2005").
3. The Assessing Authority assessed the appellant to the tax liability of Rs.2,08,715/- for the said tax period vide Orders, dated 10.02.2017. As a sequel to said assessment, penalty Order, dated 25.05.2017 for a sum of Rs.52,179/- vide A.O.No.68341 in Form VAT, 203 was passed by the Commercial Tax Officer, Vijayawada, the 2nd respondent herein.
4. Aggrieved by said Order of penalty, the assessee filed the first appeal before the Appellate Deputy Commissioner (CT), Vijayawada (for short "ADC") bearing Appeal No.VJA-1/18/ 2017-18 and the ADC dismissed said appeal on 18.05.2018. 2 Against said Order, the petitioner herein filed further appeal under Section 33 of VAT Act, 2003 before A.P. VAT Tribunal, Visakhapatnam (for short "Tribunal") on 29.01.2020. Pending appeal, the petitioner herein filed a stay application under sub-Section 6(a) of Section 33 of VAT Act, 2005. By way of the Order impugned in the present Writ Petition, the Joint Commissioner (CT) Legal, Vijayawada dismissed the stay application filed by the petitioner.
5. According to the learned counsel for the petitioner, at the time of filing appeal filed before the Tribunal, the petitioner herein has already paid a sum of Rs.26,092/- towards 50% of the disputed penalty, and in the event of payment of the rest of the amount as insisted in the impugned Order, nothing remains for adjudication of the appeal before the Tribunal.
6. It is the further submission of the learned counsel for the petitioner that the petitioner herein is hard-pressed for funds and he is not in a position to pay the balance amount and in the event of compelling the petitioner to pay the balance amount, he has to pay from out of working capital, which would cause loss to the business of petitioner.
7. It is also the submission of the learned counsel for the petitioner that the levy of tax arrived at, by the Assessing Authority as confirmed by the ADC, is also the subject matter of separate appeal filed before the Tribunal, and the levy of penalty under Section 53(1)(ii) of the VAT Act, 2005 cannot be considered as automatic.
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8. On the other hand, it is vehemently contended by the learned Government Pleader that sub-Section 6(a) of Section 33 of VAT Act, 2005 enables the authority i.e., the Joint Commissioner to grant stay on such terms and conditions, as he may think fit, and in exercise of such power, the Joint Commissioner passed the Order impugned in the present Writ Petition, rejecting the stay of collection of penalty.
9. Admittedly, in the case on hand, the appeal filed by the petitioner herein against the levy of the tax, is pending consideration before the Tribunal, so also the appeal filed against the penalty orders.
10. It is also not in controversy that while filing the appeal, the petitioner herein deposited an amount of Rs.26,092/- towards the disputed penalty. As rightly pointed out by the learned counsel for the petitioner in the event of compelling the petitioner to pay the rest of the disputed penalty amount, nothing remains for adjudication in the appeal pending before the Tribunal.
11. At the cost of the repetition, it is to be noted that the 50% of the disputed penalty has already been deposited by the petitioner herein out of the total penalty amount, while filing the appeal before the Tribunal. It is also required to be noted that against the levy of tax an appeal is pending consideration before the Tribunal. Therefore, taking into consideration of all the above aspects, this Court is of the opinion that the Joint Commissioner is 4 not justified in rejecting the stay application filed by the petitioner herein under sub-Section 6(a) of Section 33 of the VAT Act, 2005.
12. For the above said reasons, this Writ Petition is allowed, setting aside the Order passed by the Joint Commissioner (CT) Legal, Office of the Commissioner of Commercial Taxes, Andhra Pradesh at Edupugallu, Vijayawada, vide Order No.JCOZH3711200D22484, dated 06.11.2020. Consequently, there shall be stay of collection of the balance of disputed penalty of Rs.26,087/- out of the total disputed penalty of Rs.52,179/- for the tax period from 2013-14 to 2016-17 pending disposal of the appeal before the Tribunal.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
__________________________ JUSTICE A.V. SESHA SAI _____________________________ JUSTICE K.SURESH REDDY Date: 30-11-2020 IS 5 THE HON'BLE SRI JUSTICE A.V. SESHA SAI AND THE HON'BLE SRI JUSTICE K.SURESH REDDY Writ Petition No.22346 of 2020 Date: 30.11.2020 IS