Andhra Pradesh High Court - Amravati
M/S. Mukand Engineers Limited, vs Joint Commissioner Ct, on 17 December, 2020
Author: K.Suresh Reddy
Bench: K.Suresh Reddy
HON'BLE SRI JUSTICE A.V.SESHA SAI
&
HON'BLE SRI JUSTICE K.SURESH REDDY
W.P.No.24010 of 2020
ORDER:(Per AVSS,J) The writ petition is filed for the following relief:-
"pleased to issue a Writ of Certiorari or any other appropriate writ or order or direction quashing the impugned order of the 1st Respondent, dated 4.11.2020 in CCTs Ref No LII1/ 193/2019 for the tax period 2011-12 to 2014-15 under the APVAT Act 2005 as illegal arbitrary unjustified and consequently set aside the Garnishee Notice dated 20.11.2020 issued by the 2nd Respondent to the 5th Respondent and also restrain the 2nd Respondent from taking any coercive steps for recovery of the balance disputed demand of Rs.15, 92,418/ out of total demand of Rs.31, 84, 838/ pending disposal of the appeal in TA(AR)No.159 of 2019 on the file of Andhra Pradesh VAT Appellate Tribunal at Visakhapatnam."
2. The Commercial Tax Officer, Gajuwaka Circle, Visakhapatnam vide TIN No.37561432510, dated 31-01-2017, passed an order of assessment for the period 2011-2012 to 2014-2015 fixing a total sum of Rs.31,84,838/-. Aggrieved by the said order of assessment, the petitioner herein preferred a statutory appeal before the 3rd respondent-Appellate Deputy Commissioner(CT), Vijayawada by depositing 12.5% of the disputed tax amount. Ultimately, the 3rd respondent-Appellate Deputy Commissioner(CT), Vijayawada dismissed the said appeal, by way of an order, dated 19-02-2019 in Appeal No.VSP/13/2017-18. Questioning the said order of the 3rd respondent-Appellate Deputy Commissioner(CT), Vijayawada, the assessee-petitioner herein preferred an appeal before the AP VAT Appellate Tribunal, Vishakapatnam by depositing a further sum equivalent to 37.5%. Pending the said Appeal, the petitioner herein filed an application before the 1st respondent-Joint Commissioner (CT), Legal under Section 33(6) of the A.P. Value Added Tax Act,2005( for 2 AVSS,J & KSR,J W.P.24010_2020 brevity "the Act"). The 1st respondent-Joint Commissioner (CT), Legal, vide order, dated 04-11-2020, dismissed the said application. Later, the 2nd respondent issued a garnishee notice, dated 20-11-2020, to the 5th respondent-State Bank of India, Navi Mumbai, Thane, attaching the petitioner's bank account. In the present writ petition, the order passed by the 1st respondent-Joint Commissioner and the garnishee notice, dated 20-11-2020, issued by the 2nd respondent to the 5th respondent are under challenge.
3. Heard Sri S.Dwarakanath, learned counsel for the petitioner and Sri T.C.D.Sekhar, learned Government Pleader for Commercial Tax for the respondent Nos.1 to 4 apart from perusing the material available on record.
4. It is submitted by Sri S.Dwarakanath, learned counsel for the petitioner that the order passed by the 1st respondent-Joint Commissioner(CT), Legal, is highly erroneous, contrary to law and opposed the very spirit and object of the provisions of the Act in general and Section 33 of the Act in particular. In elaboration, it is further submitted that since the petitioner herein already paid 50% of the disputed tax amount and also another sum equivalent to 50% in the appeal filed against the penalty order, the 1st respondent-Joint Commissioner(CT), Legal, ought not to have dismissed the application. It is also further submitted by the learned counsel for the petitioner that having regard to the grounds urged before the Tribunal in the grounds of appeal, in the event of insisting on the petitioner to pay the balance disputed amount also, the very appeal filed by the petitioner herein would be rendered infructuous.
5. On the contrary, it is strenuously contended by Sri T.C.D.Sekhar, learned Government Pleader for Commercial Tax that having regard to the facts and circumstances of the case, the dismissal of the said application by the 1st respondent herein cannot be faulted. It is the 3 AVSS,J & KSR,J W.P.24010_2020 further submission of the learned Government Pleader that Sub- section 6(a) of Section 33 of the Act enables the Joint Commissioner to exercise the jurisdiction and the said power is discretionary and since the 1st respondent-Joint Commissioner(CT), Legal, exercised the said power and jurisdiction, no interference of this court is warranted under Article 226 of the Constitution of India.
6. There is absolutely no controversy with regard to the factum of pendency of the appeal before the Tribunal and it is also not in dispute that the petitioner herein, at the time of preferring the appeal before the first appellate authority i.e., 3rd respondent herein, deposited a sum equivalent to 12.5% of the disputed tax. It is also not in controversy that in addition to the said 12.5%, while filing the appeal before the Tribunal, the petitioner again deposited another 37.5% i.e., totally a sum equivalent to 50%. It is brought to the notice of this court during the course of arguments that with regard to the subject assessment years, the assessing authority also imposed 100% penalty. In connection with the said penalty order also, the petitioner herein deposited 50% of the disputed penalty totally. It is also brought to the notice of this court that when the Joint Commissioner- 1st respondent dismissed the stay application, pending appeal against the said penalty order, this court in W.P.No.23717 of 2020, while disposing of the said writ petition, granted stay of collection of balance 50%. The said aspect is also not in dispute. In the grounds of appeal filed before the AP VAT Appellate Tribunal, Vishakapatnam, the petitioner herein urged a number of contentions and the same are required to be gone into by the AP VAT Appellate Tribunal, Vishakapatnam at the time of adjudicating the issues. Therefore, in the considered opinion of this court that there is no justification on the part of the 1st respondent herein in rejecting the stay application filed by the petitioner herein and in issuing garnishee notice.
4 AVSS,J & KSR,J W.P.24010_2020 For the aforesaid reasons, the writ petition is allowed, at the stage of admission, setting aside the order, dated.04-11-2020 passed by the 1st respondent-Joint Commissioner(CT), Legal in CCT'S Ref.No.LII(1)/193/2019 as well as garnishee notice, dated 20-11-2020 issued by the 2nd respondent to the 5th respondent. Consequently, there shall be stay of further collection of the amount from the petitioner pending appeal before the AP VAT Appellate Tribunal, Vishakapatnam. No order as to costs.
Miscellaneous applications pending, if any, shall stand closed in consequence.
_______________ A.V.SESHA SAI,J ___________________ K.SURESH REDDY,J 17th DECEMBER,2020 Note:-
Issue CC in two (2) days.
(B/O) TSNR