M/S Pepsico India Holdings … vs The State Of Bihar &Amp; Ors on 23 February, 2011

             IN THE HIGH COURT OF JUDICATURE AT PATNA

             CIVIL WRIT JURISDICTION CASE No.3464 of 2011
                                     With
                             I.A. No. 1468 of 2011
   ====================================================
   M/S Pepsico India Holdings Private Limited, a Company incorporated
   under the provisions of Companies Act, 1956 having its Registered Office
   at Gurgoan and its Sales Depot/Branch Office at present Patliputra Cands,
   East Bhika Chak, Near Shahni Cement Bhandar, New Bye Pass Road,
   Anishabad, Patna through its Area Sales Manager of the Petitioner
   Company Shalendra Singh, son of Sri Rajwant Singh, resident of 104-A,
   Suchi Complex, Mazar Gali, Sheikhpura, P.S. Shastri Nagar, District Patna.
                                                                 - Petitioner
                                Versus


1. The State Of Bihar through the Secretary-cum-Commissioner of
   Commercial Taxes, Bihar, Vikash Bhawan, Bailey Road, Patna.
2. The Commissioner of Commercial Taxes, Bihar, Patna.
3. The Deputy Commissioner of Commercial Taxes, Patliputra Circle, Patna
                                                              - Respondents
   ====================================================
   Appearance :
   For the Petitioner:   Mr. Y.V.Giri , Senior Advocate
                         Mr. Suraj Samdarshi, Advocate
   For the Respondents: Mr. Lalit Kishore, AAG1
   ====================================================

   CORAM: HONOURABLE THE CHIEF JUSTICE
                and
         HONOURABLE MR. JUSTICE JYOTI SARAN

   ORAL ORDER

(Per: HONOURABLE THE CHIEF JUSTICE)
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2 23.02.2011 The petitioner in this writ petition

filed under Article 226 of the Constitution

challenges the coercive action taken by the

respondents-State of Bihar for recovery of its

outstanding dues of Value Added Tax for the

assessment years 2005-06 to 2007-2008 by

attachment of the bank account of the

petitioner.

The matter in dispute is whether the

commodity sold by the petitioner namely Potato

Chips is amenable to Value Added Tax at the

rate of 4% or at the rate of 12.5%. The

petitioner has lost its claim before the

assessing authority and before the appellate

authority. Though the matter is pending before

the Commercial Taxes Tribunal since 2008, the

petitioner has not obtained stay order against

the recovery of the outstanding demand nor the

petitioner has approached the Commissioner of

Commercial Taxes for classification. The

claims made in the petition disclose the

tendency of the petitioner not to pay the

disputed amount unless compelled.

In view of the huge demand outstanding

against the petitioner we are inclined to grant

a limited relief to the petitioner to the
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extent that there may not be coercive recovery

against the petitioner if the petitioner pays a

sum of Rs. 50 lakhs against the outstanding

dues by 28th February 2011.

For the aforesaid reason we direct the

respondent authorities not to resort to

coercive recovery if the petitioner pays a sum

of Rs. 50 lakhs against the outstanding demand

for the assessment years 2005-06 to 2007-08.

For the remaining amount, unless the petitioner

obtains a restraint order from the concerned

authority or the Tribunal below by 31st March

2011, the respondents will be at liberty to

make recovery in accordance with law.

Subject to the above direction and the

observation the petition stands disposed of.

(R.M. Doshit, CJ.)

(Jyoti Saran, J.)
Bibhash