2016 (7) TMI 37 - HC - VAT and Sales Tax

Waiver of pre-deposit - appeal was pending before the tribunal - Section 33(6) of the Act read with Rule 39 of the Andhra Pradesh Value Added Tax Rules, 2005 - claim of exemption by the retail dealers from even mentioning the date and description of the goods in the sale bills issued by them - Held that - As the substantive appeal is still pending before the Tribunal, it would not be appropriate for us to examine the scope of Rule 26(1) of the Rules or to record any finding on whether Rule 26(1) of the Rules exempts retail dealers from even mentioning the date and description of the goods in the sale bills issued by them. Suffice it to observe that the prima facie conclusion of the Additional Commissioner in this regard cannot be said to suffer from perversity necessitating exercise interference in proceedings under Article 226 of the Constitution of India. The mere fact that the petitioner paid 25% of the disputed tax would not by itself justify grant of stay. While the petitioner s request, that the impugned order passed by the Additional Commissioner must be set aside, necessitates rejection, it is made clear that, while paying the balance tax due in terms of the order passed by the revisional authority, the petitioner shall be given credit for the amount paid by them towards the tax due. - writ petition dismissed - Decided against the petitioner.

Issues:
1. Rejection of application for grant of stay pending disposal of the appeal by the Sales Tax Appellate Tribunal.
2. Interpretation of Rule 26(1) of the Andhra Pradesh Value Added Tax Rules, 2005.
3. Examination of the Additional Commissioner's authority to pass a conditional order of stay.
4. Payment of disputed tax and applicability of Section 33(6)(a) of the Andhra Pradesh Value Added Tax Act, 2005.

Analysis:

1. The Writ Petition challenges the rejection of the petitioner's application for a stay by the Additional Commissioner of Commercial Taxes. The petitioner was assessed under the Andhra Pradesh Value Added Tax Act, 2005, and sought a stay of the disputed tax pending the appeal before the Sales Tax Appellate Tribunal. The Additional Commissioner rejected the stay application, leading to the current challenge in the High Court.

2. The petitioner argued that Rule 26(1) of the Rules, which pertains to the particulars required in invoices, does not apply to retail dealers. The Additional Commissioner took a view that even retail dealers must provide essential information in sales bills. The High Court refrained from a detailed examination of Rule 26(1) due to the pending appeal before the Tribunal. The Court emphasized that the Tribunal should independently assess the applicability of Rule 26(1) without being influenced by previous observations.

3. The Additional Commissioner's examination of the matter on its merits was contested. The Court noted that the Additional Commissioner was obligated to consider all contentions raised by the petitioner in their stay application and record a prima facie conclusion. The Court clarified that the Additional Commissioner has the discretion to grant or refuse a stay under Section 33(6)(a) of the Act, and is not bound to grant a stay in every application.

4. The petitioner's argument regarding the payment of disputed tax and the application of Section 33(6)(a) was addressed. The Court highlighted that the mere payment of 25% of the disputed tax does not automatically warrant a stay. The petitioner was directed to pay the balance tax due within a specified period to avoid coercive recovery measures. The Court emphasized that the balance tax paid would be subject to the outcome of the appeal before the Tribunal.

In conclusion, the Writ Petition was dismissed with specific directions regarding the payment of the balance tax due. The Court clarified the discretionary power of the Additional Commissioner in granting stays and the need for independent assessment by the Tribunal on legal provisions.

← Previous Next →