1994 (4) TMI 369

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....with interest, under section 33-E of the Andhra Pradesh General Sales Tax Act, 1957 (for short "the Act"). The petitioner is a dealer under the APGST Act. It is stated that for the year 1984-85, a sum of Rs. 14,46,251 became refundable to the petitioner by virtue of the order of assessment dated March 3, 1990 and for the year 1989-90, a sum of Rs. 2,41,705 became refundable in view of the order of assessment dated August 16, 1991. In so far as the assessment year 1984-85 is concerned, the petitioner filed an application on March 21, 1990, for refund of the amount due to it. It is stated by the respondent that the amount due for the years 1985-86 and 1988-89 amounting to Rs. 75,437 was adjusted. The petitioner says that by virtue of the o....

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....efund of the amount is not maintainable, therefore, the writ petition is liable to be dismissed. He further submits that the amount now claimed as refund, if agreed to, would result in unjust enrichment of the petitioner. The learned Government Pleader prays that the writ petition may be dismissed. The short question that falls for consideration is, whether the petitioner is entitled to claim refund of the amount, which is the subject-matter of the writ petition. Before we proceed to answer this question, it would be useful to refer to the decision relied upon by the learned Government Pleader in Suganmal v. State of Madhya Pradesh [1965] 16 STC 398 (SC). In that case, the appellant paid certain tax under the Indore Industrial Tax Act....

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....nstitution of India. From a perusal of the above decision, it is clear that where there is a statutory provision for refund of the tax and the petitioner is seeking to enforce the obligation cast on the State under the provisions of the Act for grant of refund, the writ petition is not covered by the above decision Suganmal v. State of Madhya Pradesh [1965] 16 STC 398 (SC). So also, in view of the provisions of section 36 of the Act, which bars civil suit either to challenge the validity of the order of assessment or any decision made by any officer or authority under the Act or any rules made thereunder or in respect of any matter falling within its scope, the writ petition would not be barred. Section 33 of the Act reads as follows:....

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.... note rule 35 of the Rules under the Act. Rule 35 of the Rules framed under the Act, reads as follows:   "The order passed on appeal or revision shall be given effect to by the assessing authority who shall refund within two months from the date of the communication of the order any excess tax and surcharge or fee found to have been collected and shall also have power to collect any additional tax and surcharge or fee which is found to be due, in the manner as if it were a tax and surcharge assessed by himself." This rule obliges the assessing authority to give effect to the order passed on appeal or revision within two months from the date of communication of the order and to refund any excess amount or fee found to have been co....

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....journed this case twice to enable the learned Government Pleader to produce the file relating to these proceedings. The learned Government Pleader produced the file. We have perused the file. The said proceedings permitted withholding of refund of tax till the finalisation of the case pending before the assessing authority relating to M/s. Phipson & Co. Ltd. including the consequential proceedings in the case of an appeal then pending (as on August 29, 1992) before the Appellate Deputy Commissioner (CT), Secunderabad Division, relating to the assessment year 1984-85.   By virtue of the said proceedings, the respondent is justified in withholding the refund till the pendency of the appeal before the Appellate Deputy Commissioner rela....