A P MUTHUSAMY GOUNDER AND COMPANY Vs. ADDITIONAL DEPUTY COMMERCIAL TAX OFFICER METTUR ROAD CIRCLE ERODE

JUDGEMENT

(1.) A. P. Muthusamy Gounder and Co. , the petitioner herein, is a registered dealer under the provisions of the Tamil Nadu General sales Tax Act, 1959 (for short, "the Act") and is an assessee on the files of the Additional Deputy Commercial tax Officer, Mettur Road Circle, Erode, the respondent herein. In respect of the assessment year 1986-87, the final order of assessment was stated to have been made by the respondent by order dated February 12, 1988. Aggrieved by the said order, the petitioner was stated to have preferred a first appeal and thereafter a second appeal to the Tamil Nadu Sales tax Appellate Tribunal, Additional Bench, Coimbatore . In the first appeal, the petitioner was stated to have obtained partial relief by way of reduction in quantum of penalty levied on the petitioner and he was further granted partial relief in tax. However, the Tribunal was stated to have set aside the entire penalty and also have given further relief in respect of tax holding that further additions were not warranted. The petition filed by the department for enhancing the penalty faces the dismal failure. The respondent however failed to pass consequential orders pursuant to the orders of the Tribunal and pass a refund order to the petitioner, throwing to winds, the statutory provisions adumbrated under rule 32 and sub-section (4) of section24 of the Act. Consequently, the petitioner resorted to the present action of praying for issue of a writ of mandamus directing the respondent to give effect to the order dated July 13, 1989, in C. T. A. No. 467 of 1988 and c. T. M. P. No. 298 of 1988 on the file of the Tamil Nadu Sales Tax Appellate Tribunal, additional Bench, Coimbatore , and to refund a sum of Rs. 44, 605 together with the interest admissible thereof.

(2.) LEARNED counsel for the petitioner vociferously submitted that it is atrocious for the respondent to keep dormant and silent without passing a consequential order pursuant to the orders of the Tribunal and further passing a refund order to the petitioner thereby throwing to winds the statutory provisions in the shape of rule 32 and sub-section (4) of section 24. A cursory perusal of the statutory provisions makes it crystal clear that there is a duty cast upon the respondent to pass a consequential order pursuant to the order of the Tribunal besides making an order of refund within 90 days and if he does so no interest need be paid. If there is a delay beyond 90 days in making the refund of the amount due a duty is cast upon to pay interest at 12 per cent per annum. At this juncture, learned Government Advocate for Taxes would in turn submit that even according to the averments made in the affidavit filed by the petitioner it has been stated that the business of the petitioner had been wound up and in such a circumstance, he would further say that in the interest of Revenue, a direction may be issued for the refund of the amount with interest provided the petitioner gives adequate security enabling the department to realise the amount of refund made to the petitioner in case the department was able to succeed in the tax revision case stated to have been filed by them. Such an argument cannot at all be countenanced on the face of the sanguine provisions adumbrated under section39-A of the Act. It is permissible for the department to obtain stay of refund by filing the necessary application in the tax case filed by them under the provisions of section39-A of the Act. Admittedly, no such order had been obtained so far. In such a circumstance, there cannot be an impediment or obstacle for this Court to issue a direction to the respondent to make refund as prayed for by the petitioner with 12 per cent interest per annum within four weeks from today.