SARVARAYA TEXTILES LTD Vs. C T O KAKINADA

JUDGEMENT

(1.) THE parties and the questions involved in both the writ petitions are common and they are being disposed of by a common order. W. P. No. 12663 of 1989 was filed for a direction to the respondents to refund forthwith a sum of Rs. 30,75,300. 50 to the petitioner which was collected for the years 1982-83 and 1983-84 towards Central sales tax demands for the said years on the ground that the assessment itself was set aside by the Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad by its order dated January 11, 1989, in T. A. Nos. 551 of 1987 and 1528 of 1987.

(2.) IT is alleged in the affidavit filed in support of the writ petition that the petitioner-company, which is a public limited company, is engaged in the business of manufacturing and selling cotton yarn, having its factories at Kakinada and Vijayanagaram. The first respondent made assessment for the years 1982-83 and 1983-84 of February 6, 1987 and October 31, 1987, respectively under the Central Sales Tax Act, 1956. It is further alleged that the assessment was made erroneously treating the consignments of cotton yarn sent to the petitioner's agents and depots as inter-State sales. Aggrieved by the assessment orders, the petitioner filed appeals to the Appellate Deputy Commissioner of Commercial Taxes, Kakinada, who confirmed the orders against which appeals in T. A. Nos. 551 and 1528 of 1987 were preferred to Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad. While the abovementioned appeals were pending, the respondents collected sales tax pursuant to the assessment orders referred to supra, by resorting to drastic coercive steps. The total amount of sales tax collected by the respondents, pursuant to the abovementioned assessment orders, came to Rs. 30,75,300. 50. While so, the Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad, allowed the appeals in T. A. Nos. 551 of 1987 and 1528 of 1987 by its order dated January 11, 1989, setting aside the orders of assessment in respect of assessment years 1982-83 and 1983-84 and remanded the matter to the assessing authority for fresh disposal in the light of the observations contained in the said order. As a result of the order passed in the appeals, refund of the sales tax amount of Rs. 30,75,300. 50, paid under the assessment orders which were set aside in appeal, became due to the assessee and the assessing authority is bound to refund the amount even without the petitioner having to make any claim in that behalf. However, the petitioner applied to the first respondent, making a copy to the second respondent, on April 14, 1989, for refund of the amount of Rs. 30,75,300. 50. A reminder dated July 15, 1989, was also sent to the first respondent and there was no response from the respondents to the written representations for refund of the amount. Therefore, this writ petition was filed for directing the respondents to refund the amount of Rs. 30,75,300. 50 to the petitioner.

(3.) QUESTIONING the abovesaid order, Writ Petition No. 16209 of 1989 was filed by the petitioner to declare that the action of the respondents in seeking to withhold the refund of excess Central sales tax due to the petitioner in respect of the assessment years 1982-83 and 1983-84 is illegal and without jurisdiction. In this writ petition, it is contended by the petitioner that the petitioner is entitled to refund of the amount by virtue of the orders of the Sales Tax Appellate Tribunal in the appeals in T. A. Nos. 551 and 1528 of 1987 under section 33-B of the Act. It is further contended that the respondents have the power to withhold under section 33-C of the Act, provided the conditions precedent for the exercise of the power under the said section are satisfied. It is alleged that the conditions are not satisfied. It is further contended that section 33-C of the Act is an exception and therefore, it should be strictly construed. It was specifically stated that the second respondent has no power and authority to pass the order under section 33-C of the Act. It is only the assessing authority who should have passed the order withholding the refund of the amount subject to the prior approval of the second respondent. It is seen from the above that after the filing of W. P. No. 12663 of 1989 claiming refund of the tax paid by the petitioner consequent to the order in appeals in T. A. Nos. 551 and 1528 of 1987, the orders were passed by the respondents purporting to exercise the power under section 33-C of the Act. Questioning the order of the second respondent dated October 31, 1989, the second writ petition was filed. In both the writ petitions, the main question involved is whether the petitioner is entitled for a direction to refund of the amount of Rs. 30,75,300. 50 as a result of the order passed in T. A. Nos. 551 and 1528 or 1987 by the Sales Tax Appellate Tribunal or not.