9911796707
TMI Blog2021 (10) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal, Visakhapatnam Bench, Andhra Pradesh (for short, 'the Tribunal'). Sri A.Sarveswar Rao, learned counsel appearing for the petitioner, submits that the 2nd respondent failed to consider relevant clauses in the lease agreement which shows that control of the buses in question lay with the petitioner. It is also submitted that his client has deposited 50% of the tax in dispute at the time of filing of the appeal. In response, Sri Sekhar, learned Government Pleader for Commercial Tax, submits that the 2nd respondent does not have jurisdiction to entertain the stay application pending hearing of appeal before the Tribunal under Section 33 of the Andhra Pradesh Value Added Tax Act, 2005 (for short, 'the Act'). Power of the 2nd respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h regard to the issue whether the remainder of the tax in dispute may be stayed or not pending appeal before the Tribunal under Section 33 of the Act, it may be apposite to refer to Sub- Section (3) of Section 31 of the Act, which reads as follows: "(3)(a) Where an appeal is admitted under subsection (1), the appellate authority may, on an application filed by the appellant and subject to furnishing of such security or on payment of such part of the disputed tax within such time as may be specified, order stay of collection of balance of the tax under dispute pending disposal of the appeal; 3 (b) Against an order passed by the appellate authority refusing to order stay under clause (a), the appellant may prefer a revision petition withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases where no stay order had been passed during hearing of the first appeal or where the stay had been refused by the first appellate authority or Additional Commissioner/Joint Commissioner as the case may be, under Sub-Section (3)(a) or (3)(b) of Section 31 of the Act. The Act also does not contain any express prohibition in granting stay of collection of remainder tax pending second appeal in such cases provided the facts of the case justify such relief. When a litigant has a right to prefer a second appeal against an order passed by the first appellate authority, it would be wholly unjust to say that he would have no right to seek suspension of collection of the remaining tax in dispute pending such appeal in appropriate cases where a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal whether the tests applied are satisfied in the factual matrix of the present case. In the light of the aforesaid reasons, we are of the opinion that the petitioner has made out a strong arguable case in appeal. Accordingly, in order to balance the equities between the parties, in exercise of our power under Article 226 of the Constitution of India we are inclined to direct that there shall be stay of collection of the remainder of the disputed tax to the tune of Rs. 4,79,010/- till the disposal of the appeal. We make it clear we have not expressed any opinion with regard to the merits of the case which is kept open to be decided by the Tribunal in accordance with law. With these directions, the Writ Petition is disposed of. There shal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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