Gayatri Projects Limited vs Commercial Tax Officer and Others

Bilal Nazki, J.—This writ petition has been filed by the petitioner, seeking a writ of mandamus directing the first respondent to adjust or refund an amount of Rs. 19,65,670 due to the petitioner as a refund for the assessment year 1995-96.

Counter has been filed and we have heard learned Counsel for the parties.

Facts are not at dispute. The petitioner had paid the amounts by way of sales tax and the respondents held that the petitioner was entitled to a refund of Rs. 19,65,672. A communication was addressed by the Commercial Tax Officer on March 29,1997 to the petitioner, informing him that he had paid an amount of Rs. 19,65,672 in excess and the tax due from him for the relevant year was Rs. 30,82,090. He was also informed that out of the excess sum, Rs. 19,65,671 would be adjusted towards the dues from him for the period from April 1996 to December 1996. He was also informed that in case he wants any refund, he shall make an application in form No. XXIII and if no such claim was made within a period of three years, no claim would be entertained thereafter. But in the same communication in last para, it is further stated that a refund order of an amount of Re. 1 is enclosed and he should apply to the Government treasury at State Bank of Hyderabad for refund of Re. 1 within three months from the date of issue of notice.

The learned Counsel for the petitioner submits that he had no difficulty if the amounts found in excess were adjusted for the future liability and as he was only entitled to a refund of Re. 1, there was no need for him to make an application in form No. XXIII, as he had already been directed to contact the treasury to take back the cash of Re. 1. The learned Government Pleader submits that the amounts could not be adjusted as no application was made within three years in form No. XXIII.

Section 33A of the Andhra Pradesh General Sales Tax Act, 1957 (for short, "the Act") reads as under:

Section 33A. Form of claim for refund and limitation.--(1) Every claim for refund u/s 33 shall be made by the assessee or licensee in such form and verified in such manner as may be prescribed, on or after the date on which the tax or the licence fees in respect of which the claim is made was directed to be refunded.

(2) No such claim shall be allowed unless it is made within three years from the date specified in Sub-section (1).

In this connection, he submits that such a provision in the Orissa Act had been upheld by a Constitution Bench of the Supreme Court in Burmah Construction Co. v. State of Orissa [1961] 12 STC 816 and also in Orient Paper Mills Ltd. v. State of Orissa [1961] 12 STC 357 In the present case, we do not feel it will be necessary for us to go into the question whether the department can refuse payment of refunds if applications are made beyond three years as contemplated by Section 33A of the Act, because that question does not fall for consideration in the factual matrix of this case. A person would apply for a relief if it is not granted to him. A person would protest for an order if he is aggrieved of it and would try to seek remedies. A person is expected to make an application within three years for refund if refund is refused, but in the present case, as we have seen from the communication, an amount of Rs. 19,65,671 out of an amount of Rs. 19,65,672 was ordered to be adjusted and the petitioner had no difficulty with it or was not aggrieved of such an order. An excess of Re. 1 was also ordered to be given to him on his approaching the State Government treasury. Therefore, there was no need at any stage for the petitioner to approach the respondents with an application for refund. Therefore, in the present case, Section 33A of the Act, in our view, has no application. It transpired after some time that the respondents have neither adjusted the amount nor paid it back to the petitioner and as such, this writ petition has been filed.

In these circumstances, we allow the writ petition and direct that the amounts be adjusted or refunded and along with these amounts, the interest shall also be calculated and either adjusted against the claims or refunded within a period of eight weeks from today. If an order of refund is made by the respondents within the time stipulated, the petitioner is at liberty to make an application accordingly for its actual refund.

That rule nisi has been made absolute as above.