TMI Blog2017 (4) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... 8784 of 2017 IN WP.NO:7155 of 2017 - - - Dated:- 18-4-2017 - Sri V Ramasubramanian and Ms J. Uma Devi, JJ. Counsel for the Petitioner: SRI M V K MOORTHY, SENOR COUNSEL Counsel for the Respondent: SRI M. GOVIND REDDY SPL STANDING COUNSEL FOR COMMERCIAL TAX (AP) ORDER Pending disposal of a writ petition challenging the demand for luxury tax to the tune of ₹ 62,80,29,344/- allegedly collected by the petitioner from its customers during the period from March, 1999 to December, 2004, the petitioner seeks an interim stay of the execution and enforcement of the demand. 2. We have heard Dr. M.V.K. Moorthy, learned counsel for the petitioner and Mr. Shaik Jeelani Basha, learned special standing counsel for the 4th respondent. 3. In order to understand the scope of the challenge in the main writ petition, it may be necessary to record here a brief historical background. Historical Background: 4. The State of Andhra Pradesh enacted the Andhra Pradesh Tax on Luxuries Act, 1987, purportedly with a view to mobilise additional resources, by imposing a tax on luxuries in Hotels and Lodging Houses. The Act came into force on 15-06-1987. It was enacted by v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, they continued to file returns as per the interim order passed by the Supreme Court. 9. However, by a decision dated 20-01-2005 reported in Godfrey Philips (I) Ltd., v. State of U.P. (2005 (2) SCC 515), a Constitution Bench of the Supreme Court struck down the levy of luxury tax on tobacco and tobacco products as unconstitutional. However, while doing so, the Supreme Court indicated that if any of the petitioners had collected luxury tax from their customers, after obtaining interim orders from the Supreme Court, they were obliged to remit the same to the Government and not to retain the same. Paragraphs 92 and 93 of the judgment of the Constitution Bench are reproduced for easy appreciation as follows: 92. It was stated on behalf of the State Government that after obtaining interim orders from this Court against recovery of luxury tax, the appellants continued to charge such tax from consumers/ customers. It is alleged that they did not pay such tax to respective State Governments. It was, therefore, submitted that if the appellants are allowed to retain the amounts collected by them towards luxury tax from consumers, it would amount to unjust enrichment by them. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents, inter alia, brining to their notice that the respondents, after obtaining interim orders from this Court, have collected luxury tax from consumers/customers, but have not paid the same to the State Government. We make it clear that in the show cause notice the petitioners will furnish all the particulars available with them to the respondents, so that the respondents can furnish appropriate reply to the petitioners. 9. After receipt of the show cause notice (s), the respondents are at liberty to take out all such contentions which are available to them, including certain contentions raised in these proceedings apart from maintainability. They are also at liberty to place reliance on the report of the Auditors/Chartered Accountants. After receipt of the reply to the said show cause notice, the petitioners will consider the same and pass appropriate orders in accordance with law after affording opportunity of hearing to the respondents. If, for any reason, the respondents are aggrieved by the orders that may be passed by the petitioners, they are at liberty to question the same before an appropriate forum. 10. Pursuant to the directions issued by this Court dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidering the reply, in accordance with law. 19. But the 3rd respondent, without being aware of the order passed in W.P.No.210 of 2017 on 23-01-2017, passed an order dated 24-01-2017. Therefore, challenging the order dated 24-01- 2017 passed by the 3rd respondent, the petitioner filed a fresh writ petition in W.P.No.2905 of 2017. The said writ petition was allowed by an order dated 30-01-2017 and the matter was remanded back to the 3rd respondent with a direction to him to receive a reply, grant personal hearing and thereafter to pass fresh orders. 20. In the meantime, the 2nd respondent passed the impugned order dated 04-02-2017 confirming the demand in a sum of ₹ 62,80,29,344/-. Therefore, the petitioner has come up with the above writ petition challenging the impugned order. 21. Before proceeding further, we are obliged to bring on record, the fact that the two other companies namely M/s. Godfrey Philips India Limited and M/s. VST Industries Limited have also been slapped with similar demands and they have also come up with writ petitions in W.P.Nos.7635 of 2017 and 8240 of 2017. In those writ petitions also, questions of jurisdiction and limitation have been rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d an order. Therefore, the 3rd respondent should refrain from passing any order until two issues namely, (1) the very liability of the petitioner; and (2) who is entitled to collect, are resolved in a manner known to law. 25. Therefore, following similar orders passed in WPMP. No.9416 of 2017 in W.P.No.7635 of 2017 and WPMP.No.10171 of 2017 in W.P.No.8240 of 2017, this miscellaneous petition is also disposed of to the following effect: (i) There will be a direction to the petitioner, without prejudice to their contentions in the writ petition, to avail the remedy of a statutory appeal under Section 11 (1) of the A.P. Tax on Luxuries Act, 1987 as against the impugned order, within two (2) weeks from the date of receipt of a copy of this order. If an appeal is so filed, the Appellate Authority may condone the delay, entertain the appeal subject to compliance with the prescriptions contained in Section 11 (2) and dispose it of in accordance with law, uninfluenced by any observation contained in this order. However, the filing of the appeal will not be taken to be an act on the part of the petitioner subjecting themselves to the jurisdiction of the authorities under the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
