9911796707
TMI Blog2023 (8) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... original Assessment Order. Aggrieved, the petitioner filed appeal TA No.1/2022 on the file of AP VAT Appellate Tribunal, Visakhapatnam/5th respondent and the same is pending for hearing. Along with appeal, the petitioner also filed a stay application in TMP No.29/2022 in TA NO.1/2022 and the same is posted for hearing on 17.11.2022. However, for non-appointment of chairperson of the AP VAT Tribunal, the matter could not be taken up and in the meanwhile respondent No.1 issued notice dated 03.11.2022 for recovery of disputed tax and also issued garnishee notices 05.11.2022 to the respondents 6 to 8 banks with which the petitioner maintains his accounts for recovery of the disputed tax which is illegal. Learned counsel for the petitioner thus prays to declare the action of respondent No.1 as illegal and direct the respondent No.2 not to take any steps for recovery of the balance disputed tax till disposal of the appeal in TA No.1/2022 pending before the respondent No.5. 3. Learned GP opposed the petition contending that in term of Section 31(3)(c) of AP VAT Act, 2005 r/w Rule 40 of AP VAT Rules, 2005, AP VAT Appellate Tribunal, Visakhapatnam/5th respondent has no jurisdiction to ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat an appeal so preferred shall not be admitted by the appellate authority concerned unless the dealer produces proof of payment of tax, penalty, interest or any other amount admitted to be due, or of such installments as have been granted, and the proof of payment of twelve and half percent of the difference of the tax, penalty, interest or any other amount, assessed by the authority prescribed and the tax, penalty, interest or any other amount admitted by the appellant, for the relevant tax period, in respect of which the appeal is preferred. (2) The appeal shall be in such form, and verified in such manner, as may be prescribed and shall be accompanied by a fee which shall not be less than Rs. 50/- (Rupees fifty only) but shall not exceed Rs. 1000/- (Rupees one thousand only) as may be prescribed. (3) (a) Where an appeal is admitted under sub-section (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; (b) Against an order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 31(3)(b) does not arise. Consequently, the question of continuation of said stay pending the appeal before AP VAT Appellate Tribunal in terms of Section 31(3)(c) also does not arise. 8. Be that it may, in terms of Rule 40 AP VAT Rules, 2005, the petitioner, pending his appeal before AP VAT Appellate Tribunal, has to apply for stay before the Additional Commissioner (Commercial Taxes) (legal) or Joint Commissioner (Commercial Taxes) (legal) for the continuation of the stay granted under section 31(3)(a) by the Appellate Deputy Commissioner until the appeal filed before AP VAT Appellate Tribunal is disposed of. This situation also does not arise because the petitioner did not move any stay application before Appellate Deputy Commissioner/4th respondent inasmuch as, as stated supra, his appeal was dismissed at the inception and therefore there was no occasion for him to file any stay application before the Appellate Deputy Commissioner. Therefore, the question of said authority granting stay and the petitioner in terms of Rule-40 praying the Additional Commissioner or Joint Commissioner to continue his stay granted by Appellate Deputy Commissioner till disposal of his appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the order of first appellate authority or deputy commissioner suo moto or in revision. The division bench was considering the issue whether the said deprivation of the power to grant stay has retrospective effect or not. In that context, the division bench has held "On a consideration of the rival submissions, we are inclined to agree with the respondents' counsel. The approach adopted by the learned Government Pleader to call the said power a procedural one and on that basis to say that it is not saved, is, in our opinion, not the right approach to adopt. The Tribunal was granting stay hitherto in exercise of its incidental/ancillary power which is an adjunct of, and flows from the substantive power to entertain and hear the appeal, conferred upon the Tribunal. We do not find it possible to separate this incidental/ancillary power from the substantive power. The substantive power to entertain and hear the appeal remains undisturbed. May be so, submits the learned Government Pleader, the said incidental power is clearly taken away with retrospective effect. We find it difficult to agree. The retrospective affect must be given either by express language, or must arise by ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner or Deputy Commissioner under sections 21 or 32 or 38; or (c) By any authority following the ruling or order passed under Section 67; may appeal to the Appellate Tribunal within sixty days from the date of service of the order or proceeding on him.] xxxxx (6)(a) Where a VAT dealer or TOT dealer or any other dealer, objecting to an order passed or proceeding recorded by a Deputy Commissioner under Section 21 or 32 has preferred an appeal to the Appellate Tribunal, the Additional Commissioner, or the Joint Commissioner may, on an application filed by the dealer, subject to such terms and conditions, as he may think fit, order stay of collection of the tax under dispute pending disposal of the appeal by the Appellate Tribunal; (b) The payment of tax and penalty, if any, due in accordance with the order of the first appellate authority or of the Deputy Commissioner under Section 21 or in revision under Section 32, in respect of which an appeal has been preferred under sub-section (1), shall not be stayed pending disposal of the appeal. Thus, as can be seen, while under Section 33(1), a VAT Appellate Tribunal has been conferred jurisdiction to entertain an appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not be stayed pending disposal of the appeal. 16. Thus, the relevant provisions of the AP VAT Act and its Rules pellucidly state that in none of the above contingencies, the VAT Appellate Tribunal is vested with the power to grant stay pending the appeal before it. The present petitioner's case fall within the category (iii) above, as he for the first time prays for stay before the AP VAT Appellate Tribunal, but the said Authority for the above reasons cannot entertain the stay application. This point is answered accordingly. 17. In the light of the above legal position obtained, the petitioner's prayer to declare the action of respondent No. 1 in issuing the notice and Garnishee notice pending the stay petition in TMP No. 29/2022 in TA No.1/2022 before the AP VAT Appellate Tribunal as illegal, cannot be considered on that ground. However, in our considered view, this Court by exercising its plenary power under Article 226 of the Constitution, pass appropriate order to meet the ends of justice. 18. Accordingly, there shall be stay of collection of the demanded tax amount as per the Assessment Order dated 14.03.2009 pending disposal of appeal TA No. 1/2022 filed by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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