GAYATRI PROJECTS LIMITED Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) This writ petition has been filed by the petitioner, seeking a writ of mandamus directing the 1st respondent to adjust or refund an amount of Rs.19,65,670/- due to the petitioner as a refund for the assessment year 1995-96. Counter has been filed and we have heard learned counsel for the parties. Facts are not at dispute. The petitioner had paid the amounts by way of sales tax and the respondents held that the petitioner was entitled to a refund of Rs.19,65,672/-. A communication was addressed by the Commercial Tax Officer on 29.03.1997 to the petitioner, informing him that he had paid an amount of Rs.19,65,672/- in excess and the tax due from him for the relevant year was Rs.30,82,090/-. He was also informed that out of the excess sum, Rs.19,65,671/- would be adjusted towards the dues from him for the period from April 1996 to December 1996. He was also informed that in case he wants any refund, he shall make an application in Form No.XXIII and if no such claim was made within a period of three years, no claim would be entertained thereafter. But in the same communication in last para, it is further stated that a refund order of an amount of Rs.1/- is enclosed and he should apply to the Government treasury at State Bank of Hyderabad for refund of Rs.1/- within three months from the date of issue of notice.

(2.) The learned counsel for petitioner submits that he had no difficulty if the amounts found in excess were adjusted for the future liability and as he was only entitled to a refund of Rs.1/-, there was no need for him to make an application in Form No.XXIII, as he had already been directed to contact the treasury to take back the cash of Rs.1/-. The learned Government Pleader submits that the amounts could not be adjusted as no application was made within three years in Form No.XXIII. Section 33-A of the Andhra Pradesh General Sales Tax Act, 1957 (for short 'the Act') reads as under-

(3.) In this connection, he submits that such a provision in the Orissa Act had been upheld by a Constitutional Bench of the Supreme Court in Burmah Construction Company v. State of Orissa and also in The Orient Paper Mills Ltd. v. The State of Orissa. In the present case, we do not feel it will be necessary for us to go into the question whether the Department can refuse payment of refunds if applications are made beyond three years as contemplated by Section 33-A of the Act, because, that question does not fall for consideration in the factual matrix of this case. A person would apply for a relief if it is not granted to him. A person would protest for an order if he is aggrieved of it and would try to seek remedies. A person is expected to make an application within three years for refund if refund is refused, but in the present case, as we have seen from the communication, an amount of Rs.19,65,671/- out of an amount of Rs.19,65,672/- was ordered to be adjusted and the petitioner had no difficulty with it or was not aggrieved of such an order. An excess of Rs.1/- was also ordered to be given to him on his approaching the State Government treasury. Therefore, there was no need at any stage for the petitioner to approach the respondents with an application for refund. Therefore, in the present case, Section 33-A of the Act, in our view, has no application. It transpired after some time that the respondents have neither adjusted the amount nor paid it back to the petitioner and as such, this writ petition has been filed.