M/S. Manikanta Traders vs And
2022 Latest Caselaw 9546 AP

                                              1


                     IN THE HIGH COURT OF ANDHRA PRADESH
                                             ****

W.P. No.38050 of 2022

Between:

M/s. Manikanta Traders, Represented by its Sole Proprietor Mr. Vallveti Rama SeshaSobhanaChala Srinivas S/o. V.Subbarao Agiripalli, Krishna District, and another .... Petitioners AND The State of Andhra Pradesh Rep. by its Principal Secretary to Government Revenue (CT-I1) Department, Secretariat Velagapudi, Amaravathi, Guntur District, A.P. & three others .... Respondents

DATE OF JUDGMENT PRONOUNCED: 12.12.2022

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO AND THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

1. Whether Reporters of Local Newspapers may be allowed to see the judgment? Yes / No

2. Whether the copies of judgment may be marked to Law Reporters / Journals? Yes / No

3. Whether His Lordship wish to see the fair copy of the Judgment? Yes / No

_________________________ U. DURGA PRASAD RAO, J

________________________________ DUPPALA VENKATA RAMANA, J

* THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO AND THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

+ W.P. No.38050 of 2022

% 12.12.2022

Between:

M/s. Manikanta Traders, Represented by its Sole Proprietor Mr. Vallveti Rama SeshaSobhanaChala Srinivas S/o. V.Subbarao Agiripalli, Krishna District, and another .... Petitioners AND The State of Andhra Pradesh Rep. by its Principal Secretary to Government Revenue (CT-I1) Department, Secretariat Velagapudi, Amaravathi, Guntur District, A.P. & three others .... Respondents

! Counsel for Petitioner : Sri S.Vivek Chandrasekhar

^ Counsel for Respondents : Government Pleader for Commercial Tax-I

< Gist:

> Head Note:

? Cases referred:

1) 2019 (107) Taxmann.com 377 (Andhra Pradesh & Telangana)

2) MANU/AP/1024/2021

HON'BLE SRI JUSTICE U. DURGA PRASAD RAO AND

HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

Writ Petition No.38050 of 2022

ORDER: (Per Hon'ble Sri Justice U. Durga Prasad Rao)

Challenging the proceedings in CTD Order No.ACO DIN3727102244485

dated 26.10.2022 of the Additional Commissioner (CT), Legal, Vijayawada / 3 rd

respondent imposing the condition that petitioners / appellants shall deposit 50% of

the disputed tax by giving credit to the tax already deposited by them while

granting stay of collection of disputed tax pending appeal filed by petitioners

before the VAT Appellate Tribunal, Visakhapatnam, the petitioners / appellants are

before us in the present writ petition.

2. The 4th respondent assessed the petitioners to CST vide Assessment Order in

A.O. No.99326 dated 19.02.2018, wherein he determined the total turnover and net

turnover of the petitioners as Rs.2,53,16,290/- and Rs.54,33,440/- respectively and

fixed the exempted turnover at Rs.1,98,82,850/- out of the total turnover, as the

said amount pertains to export sales covered by the relevant H forms and

accordingly, passed the Assessment Order.

(a) Subsequently the 2nd respondent issued pre-revision show cause notice

dated 31.03.2020 to the petitioners and passed the D.C. Order

No.ZH3707210D54231 dated 22.06.2021 under Section 32 of the A.P. Value

Added Tax Act, 2005 (for short, „the AP VAT Act, 2005‟) and proceeded to revise

the original Assessment Order dated 19.02.2018. By virtue of the revised order,

the 2nd respondent denied the exemption granted to the petitioners on export sales

for a turnover of Rs.1,98,82,850/- and levied the tax @ 5% on the said turnover.

The tax burden on levy comes to Rs.9,94,143/- for the Assessment Year 2013-14.

According to the petitioners, the 2nd respondent passed the said order on the sole

premise that H forms submitted by the petitioners were not supported by the

Foreign Buyer Purchase Agreements. Pursuant to the revision 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 assessment order passed by 4th respondent and denied the exemption

granted by 4th respondent over the turnover of Rs.1,98,82,850/-. The said revision

order is contrary to law for many reasons. Firstly, that the petitioners have already

submitted H forms as well as bill of lading prior to claiming exemption for the

export sales under Section 5(3) of the CST Act. The submission of Foreign Buyer

Purchase Agreements is not mandatory. However, the 2nd respondent took an

erroneous view in the revision order and denied exemption. Nextly, the revision

show cause notice was issued on 31.03.2020 and revision order was passed on

22.06.2021. Both acts were during the period when the country was facing

COVID-19 pandemic. In such circumstances, the petitioners were unable to

participate in the revision proceedings to appraise factual and legal position to 2 nd

respondent.

(a) Learned counsel would submit that on the above and other grounds, the

petitioners filed appeal in T.A.No.63/2022 before the AP VAT Appellate Tribunal,

Visakhaptnam and also filed stay application before the 3 rd respondent appraising

the grounds of appeal. While filing appeal, the petitioners made mandatory deposit

of 25% of the disputed tax. Though the 3rd respondent has, perused the formidable

grounds projected by the petitioners in their appeal and made a note of it, however,

instead of granting stay without imposing further conditions in view of the strong

case of the petitioners in the appeal, imposed onerous condition of depositing

additional 25% of the disputed tax. Learned counsel would strongly urge that the

mandatory deposit of 25% would be sufficient to grant stay without directing

further deposit. To buttress his argument, he relied upon the judgment dated

22.06.2018 of the Division Bench of the common High Court of Andhra Pradesh

and Telangana in M/s. Sri Dedeepriya Paints v. Deputy Commercial Tax

Officer 11. He also relied upon the judgment dated 02.03.2020 in

W.P.No.3954/2020 & batch passed by the Division Bench of the High Court of

Telangana. He thus prayed to set aside the order of the 3 rd respondent to the extent

of directing the petitioners to deposit additional 25% of the disputed tax for

granting stay.

2019 (107) Taxmann.com 377 (Andhra Pradesh & Telangana)

5. Learned Government Pleader for Commercial Taxes-I opposed the writ

petition and mainly contended that the statutory deposit 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 3 rd 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 petitioners have admittedly fulfilled the said condition. While so, Section

33(6) deals with the power of the concerned authority to grant stay. Section 33(6)

reads thus:

(6) (a) Where a VAT dealer or TOT dealer or any other dealer, objecting to an order passed or proceeding recorded by a Deputy Commissioner under Section 21 or 32 has preferred an appeal to the Appellate Tribunal, the Additional Commissioner, or the Joint Commissioner may, on an application filed by the dealer, subject to such terms and conditions, as he may think fit, order stay of collection of the tax under dispute pending disposal of the appeal by the Appellate Tribunal;

(b)The payment of tax and penalty, if any, due in accordance with the order of the first appellate authority or of the Deputy Commissioner under Section 21 or in revision under Section 32, in respect of which an appeal has been preferred under sub-section (1), shall not be stayed pending disposal of the appeal.

(a) In the instant case, following Section 33(6)(a), the petitioners filed stay

application before the 3rd respondent and said authority passed the order dated

26.10.2022 as follows:

"The dealer filed the relevant documentary evidence before the Revision Authority except the purchase order copy placed by the foreign buyer on Indian Exporter. The case Laws relied upon by the dealer clarified that it is not mandatory to produce Foreign Buyer Purchase Order / agreement before the assessing authority, but Foreign Buyer Purchase Order No. & Date must be produced for finalization of the assessment. Hence, I opine that it requires further verification of the connected records with reference to the provisions of the CST Act, 1956. Since, the appeal is pending before the VAT Appellate Tribunal, the dealers have paid 25%

disputed tax while filing appeal. Hence, without expressing any opinion on the merits of the case, I feel it just and proper to grant stay of collection of the disputed tax on a condition that the appellant-petitioner shall pay 50% of the disputed tax within 15 days of the service of the order and the taxes already paid if any shall be given credit. The stay will be in force till the disposal of the appeal by the Honourable APVAT Appellate Tribunal, Visakhapatnam."

(b) Now, the grievance of the petitioners is that having regard to the strong

grounds of appeal projected by the petitioners and noted 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 to grant the petitioner stay of collection of the balance disputed tax and issuing Garnishee orders to the petitioner‟s banker for recovery of the balance disputed tax."

(e) However, the above judgments cannot be taken as precedent by this Court

for the reason that in ACT Digital Home Entertainment Pvt. Ltd. v. The State

of Andhra Pradesh2, a Division Bench of this High Court while distinguishing the

judgment in Sri Dedeepriya Paints (1 supra) has observed thus:

5. The aforesaid observation was made by the Bench in the factual matrix of the case wherein the revisional authority had mechanically applied the ratio in Assistant Collector of Central Excise v. Dunlop India Ltd. MANU/SC/0169/1984 : 1984 taxmann.com 492 without considering the distinguishing factors pleaded by the petitioner concerned. By no stretch of imagination, the said observation can be said to have crystalised as a rule of law that pre-deposit of 12.5% of the disputed tax and penalty would automatically suspend the realization of the remainder tax liability. It may me apposite to note that the attention of the Bench had not been drawn to Section 31(3)(a) & (b) of the A.P. VAT Act.......(xxx)"

6. If the argument of the learned counsel is accepted, then, the aforesaid provisions giving discretionary power to the appellate authority and thereafter, to the revisional authority to stay the

MANU/AP/1024/2021

collection of balance tax/penalty in dispute pending hearing of the appeal, would become otiose. Furthermore, the Special Leave Petition against the aforesaid judgment was dismissed in limini and therefore, no declaration of law can be said to have been made by the Apex Court on this score."

8. Thus, we are unable to read a binding precedent declared in Sri. Dedeepriya Paints's case (1 cited supra) that pre-deposit of 12.5% of the tax/penalty in dispute for the institution of the appeal, would automatically suspend the realization of the remainder of tax/penalty in dispute."

(f) Thus, the Division Bench held that in view of the express provision under

Section 31(3)(a) & (b) of the AP VAT Act, 2005, observations made in Sri

Dedeepriya Paints (1 supra) cannot be said to have crystalised as a rule of law that

pre-deposit of 12.5% of the disputed tax and penalty would automatically suspend

the realization of the remainder tax liability. The Division Bench further held that

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 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 ACT Digital Home (2 supra) it can be said that the initial

pre-deposit of 25% made under Section 33(2) of the AP VAT Act, 2005 will not

automatically entitle any dealer to claim stay of collection of the differential tax

pending his appeal as a matter of right.

(h) So far as the argument of the petitioners that in spite of noting the strong

grounds of appeal projected by the petitioners, without considering the same, 3rd

respondent imposed an onerous condition is concerned, it must be said that it is

only after taking such grounds into consideration and observing that they require

further verification of the connected records, 3rd respondent felt it just and proper

to grant stay of collection of the disputed tax. Thus, the authority was of the

opinion that the grounds projected by the petitioners require thorough verification

with reference to the records at the time of hearing the appeal. In that view only,

he granted stay. Then the imposition of the terms is concerned, the said part relates

to the discretion of the concerned authority vested under the statute. So long as the

exercise of the discretion is within the jurisdiction of an authority and also within

the frame work of the statute and does not appear to cause extreme hardship to the

party who has to comply, this Court will not interfere with the stay order under its

plenary power. In the instant case, we do not find any legal flaw in the order

impugned.

Accordingly, this writ petition is dismissed. No costs.

As a sequel, interlocutory applications pending, if any, shall stand closed.

_________________________ U.DURGA PRASAD RAO, J

________________________________ DUPPALA VENKATA RAMANA, J 12.12.2022 mva