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Madras High CourtWP(MD)/16885/2016disposed of

M/S.Pl.A. Rathna Residency, v. The Appellate Deputy

2016-09-07Honourable Dr. Justice S. Vimala3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.09.2016

CORAM

THE HON'BLE Dr.JUSTICE S.VIMALA W.P(MD) No.16885 of 2016 M/s.PL.A.Rathna Residency rep.by its Partner Annamalai, No.2, Dindigul Road, Central Bus Stand, Trichy.

... Petitioner -vs1.The Appellate Deputy Commissioner (CT) Trichy.

2.The Assistant Commissioner (CT) Palakkarai - I Assessment Circle, Trichy.

... Respondents Prayer:-Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records in S.P.No.142/2016 in LHT AP No.09/2016 dated 08.08.2016 on the file of the 1st respondent and quash the same as illegal and direct the 2nd respondent to accept the personal bond to be executed by the petitioner in lieu of security.

For Petitioner : Mr.S.Karunakar For Respondents : Mr.R.Karthikeyan Additional Government Pleader

O R D E R

This Writ Petition has been filed seeking for issuance of Writ of Certiorarified Mandamus calling for the records in S.P.No.142/2016 in LHT AP No.09/2016 dated 08.08.2016 on the file of the first respondent and quash the same as illegal and direct the second respondent to accept the personal bond to be executed by the petitioner in lieu of security.

2.Heard the learned counsel for the petitioner and the learned Additional Government Pleader, who takes notice for the respondents. By consent, the writ petition itself is taken up for

final disposal at the stage of admission.

3.The learned counsel appearing for the petitioner would submit that the respondents have collected the entire arrears of tax amount from the petitioner firm and the further payment on the disputed tax and balance of tax to be paid by the petitioner is under challenge, for which, the appellate authority directed the petitioner firm to file a Security Bond or Bank Guarantee for the balance of tax. However, the petitioner firm is not in a position to provide the same. He would further submit that the amount demanded by the respondents is a disputed question, which has to be decided by the authority concerned. Therefore, he seeks modification of the order of the appellate authority.

4. The learned Additional Government Pleader would only contend that even as per the decision of the Supreme Court unless safe guard in respect of payment in question is made, the revenue of the Government will be at stake. Therefore, the order of the appellate authority holds good.

5. In a similar occasion, the Division Bench of this Court made in W.A.(MD).No.194 of 2005, dated 13.07.2006, has stated 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 respondent, the appellant has also paid another 20% of 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."

6. In view of the earlier order and also in view of the fact that the petitioner firm has already paid the entire arrears of tax amount, this court, considering the facts and circumstances of the case, modifies the conditions imposed by the appellate authority only insofar as to the grant of Bank Guarantee:- (i) For the balance of tax amount, the petitioner firm

shall execute a personal bond with the appellate authority within a period of two weeks from the date of receipt of a copy of this order.

(ii) In case, if the petitioner firm fails to furnish the personal bond for the balance of tax amount as imposed by the respondents, this modification granted by this Court shall stand cancelled without any reference to this Court and the order of the appellate authority will get automatically restored. 7.The learned Additional Government Pleader appearing for the respondents would submit that the present writ petition is filed by one PL.Annamalai in the capacity of Partner of PL.A.Rathna Residency, and the personal bond for the balance of tax amount should be executed in his personal capacity. This submission is accepted by the learned counsel for the petitioner. Therefore, personal bond for the balance of tax amount should be executed by PL.Annamalai in his individual capacity. 8.This Writ Petition stands allowed to the extent indicated above. No costs.

Sd/- Assistant Registrar(AE) /True copy/ Sub Assistant Registrar To 1.The Appellate Deputy Commissioner (CT) Trichy.

2.The Assistant Commissioner (CT) Palakkarai - I Assessment Circle, Trichy.

+1 cc to M/s.S.Karunakar, Advocate in SR.No.50800/16 +1 cc to The Special Government Pleader in SR.No. 50941/16 mj CSL/EM-MPA/21.10.2016: 3p/5c W.P(MD)No.16885 of 2016 07.09.2016