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TMI Blog2014 (7) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... ection of 50 per cent. of disputed tax shall continue till the appeals are disposed of by respondent No. 3 following due process of law. - Writ Petition No. 27406, 27616 of 2013 - - - Dated:- 23-12-2013 - ROHINI G. AND SUNIL CHOWDARY T., JJ. ORDER:- The order of the court was made by MS. G. ROHINI J.- The petitioner in these two writ petitions is a registered dealer under the Andhra Pradesh Value Added Tax Act, 2005 as well as the Central Sales Tax Act, 1956. The petitioner was assessed under the provisions of the Andhra Pradesh Value Added Tax Act, 2005 (for short, the AP VAT Act ) for the years 2009-10 and 2010-11 by separate orders dated May 8, 2013 passed by respondent No. 4-Assistant Commissioner (CT)-VI, Enforcement Wing, Hyderabad. Aggrieved by the said orders, the petitioner filed appeals before respondent No. 3 under section 31 of the A.P. VAT Act on payment of predeposit of 12.5 per cent. of the disputed tax along with applications for stay of recovery of the disputed tax. However, by orders dated August 17, 2013 respondent No. 3 rejected the applications for stay and the said orders were made available on the website of respondent No. 3 on August 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d consequently to direct respondent No. 5 to refund the entire amount so recovered. A further declaration is sought that the order dated September 3, 2013 passed by respondent No. 2 to the extent of imposing the condition of payment of 50 per cent. of the disputed tax while granting stay of recovery of the disputed tax is arbitrary and illegal since the said condition was imposed without assigning any reasons and without application of mind to the facts and circumstances of the case. We have heard Sri D. Prakash Reddy, the learned senior counsel appearing for the petitioner and Sri P. Balaji Varma, the learned Senior Standing Counsel for Commercial Taxes appearing for the respondents. Having regard to the ratio laid down in Anab-E-Shahi Wines and Distilleries Private Limited v. Appellate Deputy Commissioner, Secunderabad Division, Nampally, Hyderabad [1995] 98 STC 386 (AP); 21 APSTJ 98 and Katuri Medical College and Hospital v. Commercial Tax Officer [2013] 62 VST 185 (AP) that the recovery of disputed tax of penalty by initiating garnishee proceedings pending disposal of the stay application before the appellate authority or the revisional authority is unjust, improper an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vate Limited v. Masood Ahmed Khan [2010] 9 SCC 496. Having carefully gone through the impugned orders dated September 3, 2013 and August 17, 2013, we do not find any substance in the contention that they are non-speaking orders and therefore cannot be sustained. A reading of the order dated August 17, 2013 shows that respondent No. 3 who is the appellate authority refused to grant stay of collection of the disputed tax observing that the dispute involved in the appeal is determination of under-declared tax on account of sale of plant and machinery and therefore he did not find any prima facie case to grant stay. May be that no elaborate reasons were assigned, however we are unable to hold that the said order was passed by the third respondent without application of mind to the facts and circumstances of the case. Coming to the order dated September 3, 2013, respondent No. 2-revisional authority having referred to the contentions of both the parties in detail, expressed that the assessing authority having called for certain information on clarification of credit entries identified a turnover of ₹ 77.91 remained unreconciled and hence levied tax. Thus the second responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Deputy Commissioner (CT), Punjagutta. If the assessee fails to pay the amount as above, the assessing authority/competent authority is at liberty to enforce collection of entire disputed tax. The abovesaid order, in our considered opinion, cannot be held to be a non-speaking order. Since the reasons are implicit in the order itself, there is no reason to hold that the said order came to be passed without application of mind to the facts and circumstances of the case. It may also be added that the power conferred under section 31 (3) (a) and (b) of the A.P. VAT Act upon the appellate authority and the revisional authority to grant stay pending the appeal is restricted by the statute itself. It is to be noticed that section 31 (3) (a) provides that the appellate authority may order stay subject to furnishing of such security or on payment of such part of the disputed tax, whereas section 31 (3) (b) provides that the revisional authority may order stay of collection of the disputed tax subject to such terms and conditions as he may think fit. Section 31(3)(a) and (b) may be extracted hereunder for ready reference: 31. (3)(a) Where an appeal is admitted under sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 273(1). Pursuant thereto, the Commissioner waived 50 per cent. of the penalty and interest by order dated September 21, 1998. The said order was assailed before this court in a writ petition contending that the Commissioner had misdirected himself in granting partial relief when the petitioner had satisfied all the conditions mentioned in section 273A of the Incometax Act and therefore the impugned order is arbitrary and amounts to failure to exercise the judicial discretion. Having regard to the settled legal position that the conditions mentioned in sub-sections (1) and (4) of section 273A of the Income-tax Act are sine qua non for the exercise of discretionary power under the said section and that the extent of discretionary jurisdiction under section 273A varies from reducing the penalty/interest to waiver of penalty/waiver completely and having taken note of the fact that though the conditions precedent for the exercise of jurisdiction under section 273A had been satisfied by the petitioner, the Commissioner had not given any reasons as to why the relief is limited to waiving 50 per cent. of penalty and interest, this court quashed the said order and remanded the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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