K SIVADASAN Vs. STATE OF KERALA

JUDGEMENT

(1.) IT is not possible to exercise extraordinary powers under article 226 of the Constitution of India, when the factual matrix is taken into consideration.

(2.) THE petitioner is a jeweller and an assessee for sales tax and file is with respondent No. 2. Initially an order, exhibit P1, is passed by the department. However the appellate authority modified the said order by exhibit P2. On perusal of the said order it is seen that on the basis of contents of para 4 thereof certain concessions were made.

(3.) HOWEVER it appears that on receipt of the proceedings, the department considered the question of refund by exhibit P6. It is found out that the dealer is in arrears of Rs. 27,845 with regard to the year 1993-94. On the basis of the said amount of arrears, by the order (exhibit P6) deducting the said amount due to the department, the order of refund of Rs. 17,790 is passed for the refund of the assessee. When the assessee is in arrears with regard to the subsequent years, in my judgment deduction cannot be stated to be unjustified and the provisions of section 44 (1) would have to be understood and read in the context. It appears that with regard to the year 1993-94 there is an interim order granting stay to the extent of an amount of Rs. 13,000. Taking into consideration all these aspects and even the provisions of section 44 (1) of the Kerala General Sales Tax Act referred to above, there is no injustice so that this Court can consider exercise of extraordinary jurisdiction. Petition stands dismissed at the stage of admission. K. C. Balagangadharan, for the appellant. T. Karunakaran Nambiar, Addl. A. G. (Taxes), for the respondents. JUDGMENt The judgment of the Court was delivered by K. K. USHA, J.- Petitioner in O. P. No. 9737 of 1995 is the appellant. He is an assessee under the Kerala General Sales Tax Act, 1963 (for short, "the Act" ). For the assessment year 1988-89, exhibit P4 assessment order was issued on December 6, 1994, after carrying out the modification issued by the Tribunal. As per the above assessment order, the appellant was entitled to refund of an amount of Rs. 45,635 paid in excess of the sales tax due. The complaint of the appellant is that along with exhibit P4, no refund voucher was issued by the sales tax authorities. He therefore came to this Court filing O. P. No. 9737 of 1995 seeking a writ of mandamus to the second respondent to issue the refund forthwith and also to pay statutory interest at 6 per cent from October 30, 1994 till the date of actual refund. 2. The original petition was filed on June 20, 1995. During the pendency of the original petition, exhibit P6 order dated July 4, 1995 was issued adjusting an amount of Rs. 27,845 out of the excess amount of Rs. 45,635 paid for the year 1988-89, towards dues for the year 1993-94. Thus the amount refundable to the assessee was reduced to Rs. 17,790. 3. The assessment for the year 1993-94 was under appeal before the Tribunal during the relevant period and by exhibit P7 order dated July 12, 1995, the Tribunal granted a stay of collection of Rs. 13,000 till the disposal of the appeal on condition that the assessee furnishing adequate security for Rs. 13,000 to the satisfaction of the assessing authority and paying the balance demanded over and above Rs. 13,000 within four weeks from the date of the order. The assessee complied with the above condition within the time granted as is evident from annexure I dated August 1, 1995 produced along with the memorandum of appeal. Annexure I is a communication addressed by the assessee to the Additional Sales Tax Officer-II, First Circle, Palakkad, enclosing there with a crossed cheque for Rs. 14,845 dated August 1, 1995 drawn on Andhra Bank, Palakkad branch and also a bank guarantee issued by Andhra Bank for the amount of Rs. 13,000. Even though the department accepted the bank guarantee and the cheque, which would completely wipe out the liability for tax for the for the year 1993-94, in view of the order passed by the Tribunal, it did not take any steps to refund the entire amount found due to the petitioner under exhibit P4. 4. It is contended by the petitioner-appellant that before exhibit P6 order was issued, notice should have been given to the assessee as exhibit P6 should be treated to have been issued invoking the power under section 43 of the Act. In the absence of such a notice, the appellant would submit that exhibit P6 should be set aside as having been issued in violation of the provisions contained in section 43 of the Act regarding notice to the assessee as also in violation of the principles of natural justice. Learned counsel appearing on behalf of the appellant further contended that even if exhibit P6 is to be treated as an order coming under section 44 (3) of the Act, in the absence of a notice to the assessee, it is bad in law, having been issued in violation of the principles of natural justice, as no notice was given before exhibit P6 order was issued. Learned counsel points out that in the statement filed by the second respondent on October 4, 1995, there is not even a reference about the cheque paid by the appellant as per annexure I and in the second statement dated October 16, 1995, it is admitted that the cheque was sent for collection with an explanation that it was done inadvertently. In any view of the matter, according to the learned counsel for the appellant, the appellant is entitled to the interest as provided under sub-section (4) of section 44 of the Act on the entire amount refundable to him as per exhibit P4 from October 30, 1994. But, the learned counsel fairly submitted that after passing exhibit P6 on July 4, 1995, the department had offered Rs. 17,790 to the appellant which the appellant refused to accept in view of the pendency of the case before this Court. 5. Sri T. Karunakaran Nambiar, Additional Advocate-General (Taxes) contended that exhibit P6 is not an order passed under section 43 of the Act. But, it is only an order passed invoking the power under sub-section (3) of section 44 of the Act. If that be so, he would submit that no prior notice to the assessee is necessary. In view of the statement by the second respondent on October 16, 1995, he would further submit that as at present there are no arrears due from the assessee for the year 1993-94, as he had complied with the order passed by the Tribunal and therefore, the amount of Rs. 27,845 adjusted for the year 1993-94 has to be refunded to the appellant.