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Primus Telecommunications India Ltd v. State Of U.P. & Others - WRIT TAX No. 1599 of 2004 [2004] RD-AH 1371 (9 November 2004)


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Court no.37


Primus Telecommunications India Limited-----        Petitioner


State of U.P. and others-------------------------   Respondents

Hon'ble R.K.Agarwal, J

Hon'ble Prakash Krishna, J.

By means of present writ petition the petitioner has challenged the assessment proceeding in respect of assessment year 2003- 04 and of subsequent period including the impugned notice dated 27-10-2004, Annexure-1 to the writ petition. The basis of challenge of the assessment proceeding and the notice is that Apex Court in the matter of  M/s Escotal Mobile Communications Ltd. Vs. Union of India and others, Civil Appeal No.2408 of 2002  had referred the matter to the larger Bench and pending decision by the larger Bench had granted stay order to the following effect:

" In case future payments of tax are made as per the demand raised, then in respect of the claim for the earlier period of time regarding penalty and penal interest the recovery shall remain stayed."

This order was passed by Apex Court on 25-09-2003 in S.L.P.No.5447 (C) of 2003. However in the writ petition Supreme Court has stayed coercive action for recovery of claim except in regard to completed assessments, subject to any statutory remedies. On the basis of this interim order the petitioner has approached this Court by filing Writ petition no.130 of 2004 when assessment proceedings for the assessment year 2001- 02 and 2002- 03 were initiated. This Court vide order dated 4-02-2004 had stayed the proceeding by following the interim order passed by Lucknow Bench of this Court in Writ Petition No.4627 of 2003.

Heard Sri Subodh Kumar learned counsel for the petitioner and the learned Standing Counsel.

Learned counsel for the petitioner claims parity on the basis of interim order dated 4-02-2004 passed in Writ Petition No.130 of 2004 and also in the light of interim order passed by the Apex Court, referred to above. He relied upon two decisions of Supreme Court in the case of Sushil Chandra Pandey Vs. Factory Manager, New Victoria Mills and another 1982 U.P.L.B.E.C. 211, Veer Bajranjg Kumar Vs. State of Bihar, A.I.R. 1987 SC 1345 and Division Bench judgment of this Court in the case of R.K.Tiwari Vs. U.P.Public Services Commission, Allahabad through its Secretary, 1982 AWC 724  wherein it has been held that if a writ petition on the similar point has been admitted and interim order has been passed, the other petitioners are also entitled for the interim relief in the same term. It may be stated here that Writ petition no.130 of 2004 has not been admitted by this Court so far and therefore, decision relied by the learned counsel for the petitioner is not at all applicable. We may mention here that even the Supreme Court in Civil appeal and the writ petition, referred to above, had not stayed further assessment proceeding and on the other hand it has made clear that in case future payments of tax are made as per the demand raised then in respect of the claim for the earlier period of time regarding penalty and penal interest the recovery shall remain stayed. The intention is clear that so far as past period is concerned, recovery has been stayed but so far as future period is concerned even the recovery has not been stayed, what to say about assessment .

In this view of the matter no case for interim order has been made. However connect the case with Writ Petition No.1340 of 2004. Learned Standing counsel may file Counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed within two weeks there after. List after expiry of the aforesaid period.

Dt: 9-11-2004



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