Mancham Venkateswara Rao vs Commercial Tax Officer and Another

S.V. Maruthi, J.—This writ petition is filed for the issuance of a Writ of Mandamus declaring the action of the respondents in not refunding the amount of Rs. 25,000/- due to the petitioner pursuant to the orders of the Sales Tax Appellate Tribunal in T.A. No. 47 of 1992 dated 19-8-1993 as illegal and arbitrary and to direct the respondents to give effect to the order of the Sales Tax Appellate Tribunal by refunding the amount of Rs. 25,000/- due to the petitioner for the Assessment Year 1983-84 together with interest at the rate of 12 per cent per annum u/s 33-F of the Andhra Pradesh General Sales Tax Act (for short ''the Act'').

The petitioner challenged the levy of sales tax on fire wood on the ground that the sale effected by the petitioner is a 2nd sale and, therefore, exempt from sales tax. According to the petitioner, he purchased the firewood from the Forest Department, which has collected the sales tax, and he in turn sold it to M/s. A.P. Paper Mills. Since the sale effected to M/s. A.P. Paper Mills is a 2nd sale, it is exempt from sales tax. By an order dated 11-12-1987, the Commercial Tax Officer did not agree with the petitioner. On an appeal by the petitioner, by an order dated 18-2-1991, the Appellate Authority confirmed the view of the Commercial Tax Officer. Aggrieved by the same, the petitioner filed an appeal before the Tribunal. The Tribunal by its order dated 19-8-1993, allowed the appeal and held that the sale effected by the petitioner in favour of M/s. A.P. Paper Mills is a second sale and therefore exempt from the sales tax. As a consequence of the order of the Appellate Tribunal, the petitioner became entitled to a refund of the duty. In spite of repeated requests by the petitioner, the respondents have not refunded the amount and, therefore, the present writ petition.

The learned Counsel for the petitioner submits that u/s 33-B of the Act, where as a result of any order passed in appeal under the Act, refund of any amount becomes due to the assessee or licensee, the assessing or licensing authority shall refund the amount to the assessee or licensee without his having to make any claim in that behalf as provided u/s 33 of the Act. The learned Counsel also submits that u/s 33-F of the Act, where a refund is due to the assessee or licensee in pursuance of an order referred to in Section 33-B and the assessing or the licensing authority does not grant the refund within a period of six months from the date of such order, the State Government shall pay to the assessee or licensee simple interest at 12 per cent per annum on the amount of refund due from the date immediately following the expiry of the period of six months aforesaid to the date on which the refund is granted. Therefore, the learned Counsel submits that since the Tribunal passed the order on 19-8-1993 without making an application, the Revenue ought to have refunded the amount. Since the Revenue failed to comply with the mandatory provisions u/s 33-B of the Act, it is liable to pay interest at 12 per cent per annum as provided u/s 33-F of the Act.

The respondents have filed a counter-affidavit stating mat on the basis of the Hon''ble Sales Tax Appellate Tribunal order dated 19-8-1993, the 1st respondent passed a revised order in G.I. No. 2120 of 1983-84, dated 1-7-1996 giving exemption on the entire turnover of wood treating it as Firewood, and a copy of the said order was served on one Ch. Manikyala Rao who is the Clerk of the petitioner on 22-8-1996. Further, the 1st respondent (i.e., Commercial Tax Officer, Jagannaickpur Circle, Kakinada) passed another order (revised) with Refund Order in Form "C" for Rs. 25,000/- (Rupees twenty-five thousand only) in G.I. No. 2120/83-84 dated 22-5-1997 and copies of the same were sent for service by Registered Post on 24-7-1997 by Acknowledgment Due as the same were not served on the dealers at Kakinada (business done at Kakinada by the petitioner) sent on 26-5-1997, 23-6-1997 and 23-7-1997. At last, the revised order and "C" Notice were served on the son of the petitioner (petitioner now residing at Rajahmundry town and not available) named by Sri M.S.N. Moorthy at Rajahmundry town (E.G. Dist.) Door No. 23-17-27,. Lalitha Nagar, Rajahmundry on 27-7-1997. But the petitioner has not filed any application or claim before the 1st respondent for the refund of the amount till now.

From the counter-affidavit, it appears that the Revenue has passed an order exempting the entire turnover on 1-7-1996 and they made an attempt to serve a copy of the order on the assessee. However, he was not available and therefore, the same was served on the son of the petitioner named by Sri M.S.N. Moorthy at Rajahmundry town (E.G. Dt.) Door No. 23-17-27, Lalitha Nagar, Rajahmundry.

From the above, it is clear that the Tribunal passed the order on 19-8-1993, while the Assessing Authority passed the revised order implementing the order of the Tribunal on 1-7-1996. u/s 33-B of the Act, pursuant to the order of the Tribunal, if any refund is due without filing a claim petition, the assessee is entitled for the refund. Rule 43 of the Andhra Pradesh General Sales Tax Rules (for short ''the Rules'') provides that an order passed by the Appellate Tribunal shall, on authorisation by the Appellate Tribunal, be given effect to by the Assessing Authority, who shall refund without interest within two months from the date of communication of the authorisation. In other words, under Rule 43 of the Rules, pursuant to the order of the Appellate Authority allowing the appeal, the Assessing Authority has to give refund of tine amount within two months from the date of communication of the order of the Tribunal. The expression ''authorisation'' used in Rule 43 of the Rules means the order of the Tribunal which is to be communicated to the Assessing Authority. There is no dispute that the order of the Tribunal has been communicated to the Assessing Authority. However, the Assessing Authority passed the order implementing the order of the Tribunal on 1-7-1996. We have already pointed out that the Assessing Authority has to refund the amount without interest within two months from the date of authorisation. In other words, he has to refund the amount of tax due to the assessee within two months from 19-8-1993. Since the assessee is entitled to refund, no claim need be made by the assessee and the Assessing Authority ought to refund the amount due to the assessee within two months from the date of the order of the Tribunal, namely 19-8-1993. Since the Assessing Authority has not refunded the amount pursuant to the order of the Tribunal as provided under Rule 43 of the Rules, the assessee is entitled for interest u/s 33-F of the Act. Section 33-F of the Act provides that where a refund is due to the assessee in pursuance of an order referred to in Section 33-B and the assessing authority does not grant refund within a period of six months from the date of such order, the State Government shall pay to the assessee simple interest at twelve per cent per annum.

Since there is a failure on the part of the Assessing Authority to refund the amount as provided under Rule 43 of the Rules, the respondents are directed to refund the amount together with interest at the rate of 12 per cent per annum from 1-3-1994 till the date of payment as provided u/s 33-F of the Act. The above said refund shall be made to the addressee mentioned in the counter-affidavit, within two weeks from the date of receipt of this order.

The Writ Petition is allowed with costs.