Vijayadurga Rice Mill vs Commercial Tax Officer, Narsaraopet

Syed Shah Mohammed Quadri, J.—The petitioner filed an appeal against the order of assessment passed by the respondent under the Andhra Pradesh General Sales Tax Act 6 of 1957 (for short "the Act") for the year 1990-91 on August 24, 1991. The Appellate Deputy Commissioner, Guntur, by order dated October 29, 1992, in Appeal No. 264/92-93, allowed the appeal. The Appellate order resulted in refund of certain amount to the petitioner. The petitioner submits that in spite of the fact that the period of two months contemplated under the Andhra Pradesh General Sales Tax Rules, 1957 (for short "the Rules") has elapsed, the respondent is not passing an order of refund and seeks a writ of mandamus directing the respondent to give effect to the order of the appellate authority without being influenced by circular Rc. No. 72/93 dated September 24, 1993 of the Deputy Commissioner of Commercial Taxes, No. II Division, Guntur.

Dr. Moorthy, the learned counsel for the petitioner, submits that the respondent has not given effect to the appellate order granting rebate which resulted in refund of the amount within two months as provided in rule 35 on the untenable ground that in view of circular Rc. No. 72/93 dated September 24, 1993, of the Deputy Commissioner of Commercial Taxes, No. II Division, Guntur, no refund can be granted until expiry of limitation for revision.

The learned Government Pleader submits that merely because rule 35 of the Rules enjoins refund of the amount, it does not mean that without waiting for the period during which power of revision u/s 20 of the Act can be exercised, the respondent is bound to order refund.

To appreciate the contentions of the learned counsel, it would be appropriate to read rule 35 :

"Rule 35 : The order passed on appeal or revision shall be given effect to by the licensing or assessing authority who shall refund within two months from the date of the communication of the order any excess tax and surcharge or fee found to have been collected and shall also have power to collect any additional tax and surcharge or fee which is found to be due, in the manner as if it were a tax and surcharge assessed by himself".

From a perusal of the above Rule, it is evident that the assessing authority is bound to give effect to the order passed on appeal or revision within two months from the date of communication of the order and give refund of the amount, if any, found to be due to the assessee. Merely because the revising authority has still time to invoke revisional power u/s 20 of the Act, cannot be a ground to ignore the provision of rule 35 of the Rules. Sub-section (3) of section 20 prescribed limitation of four years from the date of service of order of assessment on the dealer, within which power of revision can be exercised by the specified authorities. But rule 35 provides that the order passed on appeal or revision shall be given effect to within two months. Thus the intention of the rule is clear that without waiting for the period during which power of revision can be exercised, the assessing authority has to give effect to the order passed on appeal.

The learned Government Pleader relied upon a Division Bench judgment of this Court in C.W.C. Wines Pvt. Ltd. v. Commercial Tax Officer (1983) 17 APSTJ 131. Though the said decision supports the contention of the learned Government Pleader, yet there is a distinguishing feature. In that case the authority has already exercised the revisional jurisdiction and notice of revision was issued to the assessee. It is not clear whether order under revision was stayed by the revising authority. In this case no such notice has been issued to the petitioner. If the revisional authority does not stay the operation of the order of the appellate authority, whether mere initiation of revision proceedings would entitle the assessing authority to ignore the orders of the appellate authority and not to comply with the provisions of rule 35, does not fall for our consideration in this case, so we do not propose to express any opinion on this aspect and leave this question open.

From the above discussion it follows that in the instant case the respondent is bound to give effect to rule 35 and implement the order of the appellate authority within two months from the date of receipt of that order by the dealer. As that time has expired, we direct the respondent to give effect to the order of the appellate authority passed on October 29, 1992, without reference to the circular issued by the Deputy Commissioner of Commercial Taxes, No. II Division, Guntur dated September 24, 1993 in Rc. No. 72/93 as it does not in any way defer the respondent from acting under rule 35.

The writ petition is accordingly allowed. No costs.

Petition allowed.