1994 (8) TMI 287

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....ged cost and damages. 2.. The petitioner is a registered dealer under the provisions of the Andhra Pradesh General Sales Tax Act, 1957 (in short "the Act"), carrying on business at Begum Bazar, Hyderabad. On July 31, 1993, the 2nd respondent checked the lorry carrying 123 bags of groundnut seeds from Chittoor to Hyderabad and demanded cash security to the extent of Rs. 34,150 representing tax and penalty as per section 29(3) of the Act on the assumption that there was an attempt to evade the tax. On failure to pay the demanded tax and penalty, 35 bags of groundnut seeds were detained by the 2nd respondent in the purported exercise of his powers under section 29(6) of the Act, and thereafter sold in public auction on October 8, 1993, by t....

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....Deputy Commissioner.   4.. Section 33-C of the Act reads as follows: "33-C. Power to withhold refund in certain cases.-Where an order giving rise to a refund to an assessee or licensee is the subject-matter of an appeal or further proceeding, or where any other proceeding under this Act is pending, and the assessing or the licensing authority is of the opinion that the grant of the refund is likely to adversely affect the revenue, the assessing or the licensing authority may, with the previous approval of the Deputy Commissioner, withhold the refund till such time as the Deputy Commissioner may determine." A careful reading of the said provision would reveal that the power of withholding the refund could be exercised only i....

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....o a refund to the petitioner. On this ground alone, the petition deserves to be allowed. As held in Vijayadurga Rice Mill v. Commercial Tax Officer [1994] 95 STC 102 (AP); (1994) 19 APSTJ 16, the intention of rule 35 is that without waiting for the period during which power of revision can be exercised, the assessing authority has to give effect to the order passed in appeal. Accordingly, we are of the view that the respondents cannot withhold the amount on the ground that the department was contemplating to take up the matter in revision against the appellate order dated February 17, 1994. 5.. For the reasons aforesaid, we do not feel it necessary to consider other arguments made on behalf of the respondents, while opposing the petition....