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TMI Blog2022 (12) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant to be due and 25% of the difference of the tax. Thus, it is mandatory that while preferring appeal a dealer shall make a pre-deposit of admitted tax plus 25% of the differential tax to admit the appeal. In the instant case, the petitioners have admittedly fulfilled the said condition. An appeal can be filed before the Appellate Tribunal under Section 33(1)(a) or (b). In the instant case, appeal is preferred under Section 33(1)(b) as against the order of the revisional authority. Then following Section 33(6) of the AP VAT Act the petitioners prayed the 3rd respondent for stay. As per Section 33(6)(a), the said authority is vested with the discretionary power of granting stay subject to such terms and conditions as he may deem fit. As has been observed by the Division Bench in ACT Digital Home [ 2021 (9) TMI 1149 - ANDHRA PRADESH HIGH COURT] , if the mandatory deposit of 25% of the disputed tax as prescribed under the second proviso of Section 33(2) of the AP VAT Act, 2005 is sufficient to obtain stay of payment of the differential tax pending appeal, certainly the provision under Section 33(6) will become nugatory and otiose. Therefore, following the ratio in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, the 4th respondent passed the Assessment Order in A.O. No.ZH370721OD39249 dated 27.07.2021 giving effect to the revision order passed by 2nd respondent. (b) Aggrieved by the revision order passed by 2nd respondent, the petitioners preferred appeal in T.A. No.63 of 2022 before the AP VAT Appellate Tribunal, Visakhapatnam. While filing the appeal, the petitioners made mandatory pre-deposit of 25% of the disputed tax before the Tribunal. Thereafter, the petitioners filed stay application before 3rd respondent seeking stay of recovery of the balance disputed tax pending appeal. The 3rd respondent passed the impugned order dated 26.10.2022 directing the petitioners to deposit additional 25% of the disputed tax while granting stay. Hence, the writ petition. 3. Heard arguments of Sri S.Vivek Chandrasekhar, learned counsel for petitioners, and learned Government Pleader for Commercial Tax-I representing the respondents. 4. The main plank of the argument of learned counsel for petitioners is that the revisional authority on an erroneous view that the petitioners have not produced the Foreign Buyer Purchase Agreements to claim exemption under export sales, revised the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit of 25% is only intended to enable the petitioners to file an appeal and such deposit will not enable the petitioners to obtain stay also. If that were the case, the provision under Section 33(6)(a) of the AP VAT Act would become redundant. He would submit that there is no legal flaw in the order of the 3rd respondent and therefore, the writ petition may be dismissed. 6. The point for consideration is whether there are merits in the writ petition to allow? 7. Point: As can be seen, under Section 33 of the AP VAT Act, 2005, a dealer aggrieved by the order passed by the revisional authority under Section 32 of the AP VAT Act, 2005 can file an appeal before the VAT Appellate Tribunal. Then the second proviso to Section 33(2) of the AP VAT Act, 2005 says that no appeal against the order passed under sub-section (2) of Section 32 shall be admitted unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due and 25% of the difference of the tax. Thus, it is mandatory that while preferring appeal a dealer shall make a pre-deposit of admitted tax plus 25% of the differential tax to admit the appeal. In the instant case, the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him, the 3rd respondent ought to have granted stay without mulcting the petitioners with additional burden by treating the initial deposit of 25% of the differential tax as sufficient. (c) In this context, we perused the judgment in Sri Dedeepriya Paints (1 supra), wherein in similar circumstances, the Division Bench of the common High Court of Andhra Pradesh and Telangana observed thus: 4. We are therefore of the opinion that the impugned order suffers on counts more than one. When the petitioner concern already paid 12.5% of the disputed tax amount for the purpose of maintaining an appeal as required by law, it would be wholly unjust for the tax authorities to demand the balance of the disputed tax amount notwithstanding the pendency of the appeal. (d) Relying on the above judgment, the Hon‟ble Division Bench of the High Court of Telangana in its judgment in W.P. No.3954/2020 batch has observed thus: 7. Since the petitioner had already paid 12.5% or more of the disputed tax pending appeals before the Appellate Deputy Commissioner and the Telangana VAT Appellate Tribunal, we are of the considered opinion that the respondents are not justified in refusing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if such argument is accepted, then the aforesaid provisions i.e., Section 31(3)(a) (b) giving discretionary power to the appellate authority and thereafter to the revisional authority to stay collection of balance tax / penalty in dispute pending the appeal would become otiose. Though the above judgment was rendered in the context of Section 31 of the AP Value Added Tax Act, 2005, still the ratio in the said decision applies with all its fours to present case covered by an akin provision i.e., Section 33 of the AP VAT Act, 2005. (g) As already discussed supra, an appeal can be filed before the Appellate Tribunal under Section 33(1)(a) or (b). In the instant case, appeal is preferred under Section 33(1)(b) as against the order of the revisional authority. Then following Section 33(6) of the AP VAT Act the petitioners prayed the 3rd respondent for stay. As per Section 33(6)(a), the said authority is vested with the discretionary power of granting stay subject to such terms and conditions as he may deem fit. As has been observed by the Division Bench in ACT Digital Home (2 supra), if the mandatory deposit of 25% of the disputed tax as prescribed under the second proviso of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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