M/S.Babu Agencies v. The Appellate Deputy

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21.04.2015 Coram The Hon'ble Mr. Justice T.RAJA W.P.Nos.11509 and 11510 of 2015 and M.P.Nos.1 and 1 of 2015 M/s.Babu Agencies rep. By its Proprietor ..

Petitioner in both the W.Ps Vs.

1.The Appellate Deputy Commissioner (CT), Chennai South Division, III Floor, C.T. Building Annexe, No.1, Greams Road, Chennai - 6.

2.The Assistant Commissioner (CT), Chengalpattu Assessment Circle, Chengalpattu.

..

Respondents in both the W.Ps Petitions filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records of the first respondent in his proceedings in S.P.Nos.39 and 40 of 2015 in A.P.Nos.40 and 41 of 2015, quash the order therein dated 09.03.2015 and further direct the first respondent to permit the petitioner to give a personal bond in substitution of the bank guarantee in respect of the amount of balance of taxes and penalty and direct the second respondent to accept another 25% payment of disputed taxes.

For Petitioner ..

Mr.K.Vaitheeswaran in both the W.Ps For Respondents ..

Mr.S.Kanmani Annamalai, Addl. Govt. Pleader (T) in both the W.Ps

COMMON ORDER These writ petitions have been filed to quash the orders of the first respondent/Appellate Deputy Commissioner (CT), Chennai and for a further direction to the first respondent to permit the petitioner to give personal bond in substitution of the bank guarantee in respect of the amount of balance of taxes and penalty and direct the second respondent to accept another 25% payment of disputed taxes. 2.The petitioner being a registered distributor of M/s.PEPSICO India Private Limited they have preferred appeals before the 1st respondent challenging the Assessment orders passed by the 2nd respondent in respect of the assessment year 2013-2014. The appeals were taken on file by the 1st respondent along with stay petitions filed by the petitioner.

The appellate authority was pleased to grant an order of stay, directing the petitioner to pay another 25% of the disputed amount of tax and furnish bank guarantee for balance amount of tax and penalty before the Assessing Authority. The said onerous condition is challenged in these writ petitions. 3.I have heard the learned counsel for the petitioner and the learned Additional Government Pleader (Tax) appearing for the respondents.

4.Learned counsel for the petitioner would submit that the impugned orders were passed directing the petitioner to pay another 25% of the disputed tax liability. He would further submit that though the petitioner is ready to pay 25% of the disputed tax by way of cheque, the same was not accepted as they have not furnished bank guarantee. Hence the petitioner seeks for the aforementioned relief. 5.Per contra, the learned Additional Government Pleader would submit that since the amount is huge, 25% of the tax is directed to be paid and for the remaining amount, the authority has ordered only security and, therefore, the impugned orders are correct. 6.It appears that the petitioner has already paid 25% of the disputed amount of tax before filing appeals. In addition to deposit of 25% of the disputed tax amount, the Appellate Deputy Commissioner, directed the petitioner to produce security in the form of Bank Guarantee in favour of the assessing officer concerned for the remaining amount of tax .

7.Considering the factual matrix, I am inclined to modify the said condition imposed by the Appellate Deputy Commissioner, (CT)/ the first respondent, in the light of the earlier pronouncement of this Court in W.P.(MD)No.20269 of 2013 dated 16.12.2013 by following the unreported judgment of the Division Bench of this Court in W.A. (MD)No.194 of 2005 dated 13.7.2006, wherein it has been held as follows:-

"2.When the appellant preferred a statutory appeal before the first respondent, as a condition precedent for filing an appeal, the appellant deposited 25% of the tax assessed. It is stated that as per the interim orders of the first appellant, the appellant has also paid another 20%o f the assessed tax which is under challenge before the first respondent.

3.In such circumstances, we feel that the interim order of stay granted by the first respondent can be directed to be continued subject to the appellant furnishing a personal bond for the remaining tax amount as well as penalty.

4.Subject to such modification, the writ appeal stands disposed of. The order of the learned single judge is also modified to the above extent. Such personal bond shall be furnished by the appellant within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed".

8.In the result, the impugned orders are modified and the second respondent is directed to accept another deposit of 25% of the disputed tax liability as agreed. As regards the second condition to execute bank guarantee, it is modified to the effect that the petitioner shall execute a personal bond instead of furnishing bank guarantee. The petitioner is directed to execute the personal bond on or before 20.05.2015 and in case of execution of such personal bond, the order of stay granted by the first respondent would be in force, till the disposal of the statutory appeals. The appellate authority shall dispose the appeals as expeditiously as possible.

8. The writ petitions are disposed of on the above terms. No costs. Consequently, the connected Miscellaneous Petitions are closed.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar mmi

To 1.The Appellate Deputy Commissioner (CT), Chennai South Division, III Floor, C.T. Building Annexe, No.1, Greams Road, Chennai - 6.

2.The Assistant Commissioner (CT), Chengalpattu Assessment Circle, Chengalpattu.

1 cc to Spl.Government Pleader,Sr.No21853 2 cc to Mr.K.Vaitheeswaran ,Advocate, SR.No.21712 W.P.Nos.11509 & 11510 of 2015 tej(co) pmk.14.5.2015