SHYBE K PADAYATTIL Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) THE petitioner is the proprietrix of Little Flower Oil Mills, Angamaly. It is a registered small-scale industrial unit. According to the petitioner, the unit was set up in pursuance of the notification dated April 11, 1979 issued by the Government of Kerala. THE unit was set up before October 21, 1980. According to the petitioner, in view of the decision of the Supreme Court in Pournami Oil Mills case [1987] 65 STC 1 the petitioner is entitled to exemption from payment of sales tax including surcharge for a period of 5 years from the date of commencement of production. THE petitioner claimed exemption from payment of tax and surcharge for the assessment years 1981-82, 1982-83, 1983-84, 1984-85 and 1985-86. But the assessing authority completed the assessment for the aforesaid years assessing the petitioner to tax. THE appeals filed by the petitioner against the assessment orders for the years 1981-82 to 1983-84 were dismissed by the first appellate authority. In second appeal by the petitioner the Tribunal reversed the orders of the authorities below and remitted the matter to the assessing authority for disposal, with the observation that if the appellant is able to produce necessary evidences to substantiate her contention that the business was set up on any date between April 11, 1979 and October 21, 1980, she should not be denied the exemptions promised as per notification dated April 11, 1979, merely because the date of commencement of business was shown as April 1, 1981 in the application for sales tax registration. THE Tribunal's order is evidenced by exhibit PI. Pursuant to the Tribunal's order the first respondent assessing authority revised the assessment orders for the years 1981-82 to 1983-84 evidenced by exhibits P2 to P4. THE first respondent held that the petitioner was qualified for full tax exemption for a period of 5 years from the date of production, that is from April 13, 1981. Accordingly, the assessment for the year 1981-82 was recorded as a case of nil demand. It is stated that the petitioner paid a sum of Rs. 32,380 towards tax and Rs. 2,360 towards surcharge and the first respondent adjusted Rs. 15,298 towards surcharge due for 1986-87 from the tax paid and Rs. 1,020 towards surcharge due for 1986-87 from the surcharge paid and ordered refund of Rs. 17,082 towards tax and Rs. 1,340 towards surcharge. Similarly by the revised assessment orders for the years 1982-83 and 1983-84 refund of tax and surcharge paid was ordered. According to the petitioner the tax paid came to Rs. 58,116 and surcharge came to Rs. 2,641.

(2.) THE assessment orders for the years 1984-85 and 1985-86 were set aside by the first appellate authority by a common order dated May 9, 1989, Exhibit P5, holding that the petitioner is fully qualified for exemption in the light of the Supreme Court decision in Pournami Oil Mills' case [1987] 65 STC 1. THE first respondent-assessing authority gave effect to the appellate order and passed revised assessment orders dated April 25, 1990 evidenced by exhibits P6 and P7. As per the said orders also refund was ordered to the petitioner. According to the petitioner, as per exhibits P2, P3, P4, P6 and P7 orders the petitioner is entitled to get a total sum of Rs. 4,29,207 by way of refund. Exhibits P2 to P4 orders are dated April 17, 1990 and exhibits P6 and P7 are dated April 25, 1990. THE complaint of the petitioner is that in spite of exhibits P2, P3, P4, P6 and P7 orders passed as early as April 17, 1990 and April 25, 1990 no refund was given to the petitioner till date. It is stated that the second respondent filed appeals, exhibits P8 and P9, before the Sales Tax Appellate Tribunal against the orders of the Deputy Commissioner (Appeals) of Agricultural Income-tax and Sales Tax, Ernakulam. THE appellate orders were communicated to the department on July 15, 1989. THE point taken is that "the Deputy Commissioner (Appeals) ought to have found that the business is set up after October 21, 1980 on the basis of evidence available in the assessment record for the period 1981-82 and therefore not entitled for exemption on the basis of Pournami Oil Mills case [1987] 65 STC 1 (SC ). In this context the petitioner has stated that the department did not question the revised assessment orders passed by the first respondent for the years 1981-82 to 1983-84, wherein it was found by the assessing authority himself that the petitioner had set up the industry before October 21, 1980.

(3.) SRI T. Karunakaran Nambiar, learned Senior Counsel appearing for the petitioner submitted that the petitioner admittedly is entitled to get refund of the amount ordered as per exhibits P2, P3, P4, P6 and P7 orders for the assessment years 1981-82 to 1985-86. Learned counsel submitted that the only dispute in this case is regarding the period for which interest is due and the rate of interest. Learned counsel submitted that in exhibit P1 order itself the Tribunal has decided the question regarding the eligibility of exemption and that the first respondent-assessing authority had considered the claim as ordered by the Tribunal and held that the petitioner is entitled to exemption pleaded and also ordered refund of the excess tax paid evidenced by exhibits P2 to P4. Though the said orders were cancelled by the Deputy Commissioner in exercise of his powers vested under section 35 of the Kerala General Sales Tax Act, 1963, the Sales Tax Appellate Tribunal on appeal filed by the petitioner by order dated May 30, 1995 cancelled the order of the Deputy Commissioner and restored exhibits P2, P3 and P4 revised orders passed by the first respondent. Similarly against the appellate order of the Deputy Commissioner exhibit P5 passed for the assessment years 1984-85 and 1985-86 holding that the petitioner is entitled to exemption pleaded the department took up the matter in appeal before the Tribunal as T. A. Nos. 233 and 234 of 1991 and the appeals were dismissed by the Tribunal on November 19, 1996. Learned Senior Counsel submitted that the only question to be decided is as to the period from which the petitioner is entitled to refund. He submits that the petitioner is entitled to get refund from the date of exhibits P2, P3, P4, P6 and P7, which are orders passed by the first respondent giving effect to exhibits PI and P5 appellate orders of the Tribunal and the Appellate Assistant Commissioner. As per section 44 of the Kerala General Sales Tax Act, 1963, when an assessing authority finds, at the time of final assessment, that the dealer has paid tax in excess of what is due from him, it shall refund the excess to the dealer. It also provides that when the assessing authority receives an order from any appellate or revisional authority to make refund of tax or penalty paid by a dealer it shall effect the refund. Sub-section (3) of section 44 provides that the assessing authority shall have power to adjust the amount due to be refunded under sub-section (1) or sub-section (2), towards the recovery of any amount due, on the date of adjustment, from the dealer. Sub-section (4) thereof provides that in case refund under sub-section (1) or sub-section (2) or adjustment under sub-section (3) is not made within ninety days of the date of final assessment or, as the case may be, within ninety days of the date of receipt of the order in appeal or revision or the date of expiry of the time for preferring appeal or revision, the dealer shall be entitled to claim interest at the rate of six per cent per annum on the amount due to him from the date of expiry of the said period up to the date of payment or adjustment.