WIMCO LIMITED Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) This writ petition is filed questioning the order dated 17-2-1998 passed by the 6th respondent (Joint Commissioner (CT) (Legal) as illegal and without jurisdiction. By the aforementioned order, the Joint Commissioner modified the orders passed earlier on 2-2-1998 and vacated the conditional order to stay of collection of penalty granted therein. By the order dated 2-2-1998, the 6th respondent granted stay of collection of penalty pending disposal of the appeal by the Sales Tax Appellate Tribunal on condition of the petitioner paying an amount of Rs. 3,06,5 79.00 which works out to an amount equivalent to the quantum of tax by 25/03/1998. The penally at five times the differential tax came to be levied under Sec.5-B(2) of the AP.General Sales Tax Act for the alleged misuse of G-Forms. That order was coiifirmed in appeal by the 5th respondent. Thereafter, a second appeal was filed before (he Tribunal. Pending the disposal of appeal by the Tribunal, the petitioner sought stay of collection of penalty by filing an application before the Joint Commissioner as required by law. On hearing the stay application, the Joint Commissioner granted stay on 2-2-1998 subject to the condition adverted to above.

(2.) On receiving a report from the Commercial Tax Officer on 4-2-1998 that a cheque was issued by the Petitioner-Company on 31-1 -1998 for the entire amount of penalty of Rs.15.32 lakhs and that the same was presented to the Bank on the same day, the matter was re-opened by the Joint Commissioner and after giving an opportunity of hearing the present impugned order was passed on 17-2-1998 withdrawing the stay granted earlier. The Joint Commissioner observed that the factum of issuing the cheque ought to have been brought to his notice when the slay application was heard on 2-2-1998 and moreover the question of granting stay does not arise when once the cheque for the entire amount has already been issued to the Department.

(3.) It is to be noticed that while issuing the cheque, the petitioner addressed a covering letter in which it was made clear that the stay petition would be coming up for hearing on the same day and the cheque may be returned if the stay was granted. After the slay order was granted on 2-2-1998, the petitioner addressed the Bank to slop payment. It is the contention of the petitioner that the cheque was issued by reason of pressure exerted on them by the Commercial Tax Officer and that the cheque was issued without prejudice lo their request for stay.