M/S. Concorde Motors (India) Limited, v. The Additional Commissioner (St),

HON'BLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN AND HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI Writ Petition No.5041 of 2018 ORDER: (per t he Hon'ble The Act ing Chief Just ice Ramesh Ranganat han) Heard Sri G. Narender Chetty, learned counsel appearing on behalf of the petitioner and Sri J. Anil Kumar, learned Special Standing Counsel for Commercial Tax (Telangana). With their consent, the Writ Petition is disposed of at the stage of admission. The proceedings under challenge in this Writ Petition is the order passed by the Additional Commissioner (ST) dated 06.02.2018, rejecting the petitioner's application for grant of stay of collection of the disputed tax, pending disposal of the appeal before the Appellate Deputy Commissioner. The appeal was preferred against the assessment order dated 31.01.

2017 for the tax periods 2011-12 to 2013-14. The petitioner preferred an appeal to the Appellate Deputy Commissioner, along with an application seeking stay of collection of the disputed tax pending disposal of the appeal. The stay petition was rejected by the Appellate Deputy Commissioner by his order dated 16.11.2017. Aggrieved thereby, the petitioner preferred a revision to the Additional Commissioner who, by the order impugned in the Writ Petition, rejected the application for stay.

The dispute in the appeal related to handling charges and warranty claims, which the petitioner had contended were post sale consideration received for services rendered, and not on the sale of automobiles. The Assessing Authority held that they were pre-sale receipts and formed part of the sale consideration.

Sri G. Narender Chetty, learned counsel for the petitioner, would rely on the decisions in ' Commissioner of Sales Tax Vs. Premnat h Mot ors (Pvt ) Limit ed1 and Commercial Tax Officer (Ant i-Evasion), Jodhpur vs. Madhura Mot ors2'. On the other hand Sri J. Anil Kumar, Special standing counsel for Commercial Tax would place reliance on the decision in ' Mohd. Ekram Khan & Sons vs. Commissioner of Trade Tax3, which was relied upon by the Revisional Authority.

As the substantive appeal is still pending consideration before the Appellate Deputy Commissioner, and as the Judgment of the Supreme Court in Mohd. Ekaram Khan & sons relates to warranty charges which forms a substantial part of the turnover subjected to tax, we consider it appropriate to direct the respondents not to take coercive steps to recover the balance tax due, pending disposal of the appeal before the Appellate Deputy Commissioner, on condition that the petitioner deposits 2/ 3rds of the disputed tax with the Assessing Authority within four weeks from today. The petitioner shall be given credit for any amount already paid in this regard.

The Writ Petition stands disposed of accordingly. No order as to costs. Pending miscellaneous petitions, if any, in this writ petition shall stand closed.

_______________________ RAMESH RANGANATHAN, ACJ __________________________ KONGARA VIJAYA LAKSHMI, J Date: 28.02.2018 BSS 1 43 STC 52 (Del.) 2 2010(29) VST 114 (Raj.) 3 (2004) 6 SCC 183

HON'BLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN AND HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI WP No.5041 of 2018 (per t he Hon'ble The Act ing Chief Just ice Ramesh Ranganat han) Date: 28.02.2018 BSS