AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2014 (11) TMI 923
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....aurants during the said assessment years, originally, whether or not they have collected the said tax from the customers. In view of certain decisions of the Supreme Court, supplies made by these assessees to consumers were not treated as sales exigible to sales tax under the above Act prior to coming into the force of 46th Amendment to the Constitution of India which introduced sub-section (29A) to article 366 of the Constitution of India by the Constitution (46th Amendment) Act, 1982. As per clause (f) of sub-section (29A) to article 366 of the Constitution (after the 46th amendment to the Constitution), "tax on the sale or purchase of goods" included "a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such supply of any goods was deemed to be a sale of those goods by the person making the supply and a purchase of those goods by the person to whom such supply is made." The 46th Amendment came into force with effect from February 2, 198....
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....ed to the assessees within one month of determination along with interest at 12 per cent from the date of payment till the date of refund. In the event of liability being found to be in excess of what has been collected, the assessing officer was granted liberty to collect the same in accordance with the provisions of law. A petition for review of the above order of the Supreme Court filed by the State Government was subsequently rejected on October 25, 1989. Thereafter, at the instance of the Commissioner of Commercial Taxes, the Government of Andhra Pradesh after examining the proposal of the Commissioner of Commercial Taxes, issued a Memorandum No. 16454/ CT.II/1/90-8 dated March 18, 1992 directing that not only those dealers who filed writ petitions and obtained orders, but also those dealers who have not filed writ petitions should also be given benefit of the orders of the Supreme Court, provided, they questioned the correctness of the respective assessments and the matter was still alive. It also directed that where there are no pending proceedings, the authorities ought not to, now entertain independent application by assessees asking an opportunity to satisfy the authori....
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....nt per annum. Questioning the denial of interest at 12 per cent per annum, the respondents/assessees filed appeals before the concerned Appellate Deputy Commissioners. Those Appellate Deputy Commissioners allowed the appeals and directed the assessing authorities to give 12 per cent interest also as directed by the Supreme Court. The Joint Commissioner (CT) (Legal) in many cases and in some cases the Additional Commissioner (CT) and the Joint Commissioner (Legal) revised the above orders of the Appellate Deputy Commissioners granting payment of interest on the ground that the assessees/revision petitioners did not specifically ask in their respective appeals or petitions for payment of interest and also on the ground that when respective appellate authorities/revisional authorities have not granted interest, the assessing authorities who were carrying out the orders of such higher authorities cannot at all give interest. It was also stated that the claim of the assessees by way of appeal for payment of interest is barred by principles of res judicata/estoppel. Aggrieved by the said orders, the assessees have filed appeals before the Sales Tax Appellate Tribunal, Andhra Pradesh, ....
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.... of a court or Tribunal, it shall not be necessary to refund any such tax to the dealer unless it is proved by the dealer to the satisfaction of the assessing authority that the tax has not been collected from the purchaser. 33C. 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 proceedings 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. 33D. Correctness of assessment not to be questioned.-In a claim for refund under section 33, it shall not be open to the assessee or the licensee to question the correctness of any assessment or other matter decided, which has become final and conclusive, or seek for a review in respect thereof, and the assessee or the licensee shall not be entitled to any relief on such claim except the refund of tax or licence fees wrongly pa....
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....ed to interest at such rate and the respondents, not being parties in the Supreme Court, cannot be granted the said relief. It is also contended that the assessments relate to the period 1983-85 and had been completed long ago. Statutory remedies of appeal, etc., have been availed of and where the issue is alive, relief on the lines indicated by the Supreme Court judgment has to be given as per the memo No. 16454/CT/II/1/90-8 dated March 18, 1992 and in other cases where no appeals had been filed or appeals filed had been rejected, the issue not being alive, there cannot be a re-opening of the assessment, grant of refund and interest. Reliance was also placed on section 33E of the Act which dealt with interest on delayed refunds. It was contended that it provides for payment of interest if the assessing authority does not grant the refund within six months from the date on which the claim for refund is made by the assessee, that such claim is to be made under rule 44A in form XXIII under section 33A, that filing of such claim petition in form XXIII is a condition precedent and if the said condition is not satisfied, the assessee is not entitled to grant of interest. As the assessee....
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....the Sales Tax Appellate Tribunal erred in holding that the State is liable to pay interest on the refund of tax in all cases because of the order of the Supreme Court in Shri Krishna Enterprises' case [1990] 76 STC 67 (SC). In taking such a view, the said Tribunal has not taken note of the provisions of the Act dealing with refunds and payment of interest on the refunds contained in section 33 to section 33F. Therefore the Tribunal's view to this extent is erroneous. First we will deal with the TRCs in which interest on refunds was granted not by the revisional authorities but by the appellate authorities under the Act, i.e., the Appellate Deputy Commissioners, (i.e., TRCs. 185 of 2001, 186 of 2001, 188 of 2001, 190 of 2001 , 192 of 2001, 193 of 2001, 194 of 2001, 202 of 2001, 207 of 2001, 208 of 2001 220 of 2001, 222 of 2001, 225 of 2001, 226 of 2001, 230 of 2001, 260 of 2001, 114 of 2002 and 241 of 2003). Under section 33B, where as a result of any order passed in appeal or other proceeding under the Act, refund of any amount becomes due to an assessee, the assessing authority is bound to refund the same without the assessee having to make any claim in that behalf, or ad....
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....ue from the date immediately following the expiry of the period of six months from the date of such order to the date on which the refund is granted even if the assessee had not made any claim for refund under section 33A. The principles of res judicata or estoppel do not apply in these cases and the mere fact that the assessees have not claimed interest either originally or subsequently in appellate proceedings would not preclude them from claiming it as section 33F gives them a right to get interest on the refund. We next deal with the second category of cases (18 cases mentioned above) where refund was granted by the revisional authorities exercising powers under section 20 of the Act. Sri M.V.J.K. Kumar, learned counsel for the respondents relied on the decision of the Full Bench of this court in State of Andhra Pradesh v. Sri Venkata Rama Lingeshwara Rice Mill [1977] 39 STC 57 (AP) [FB] and contended that the said decision supports his contention that revisional powers under section 20 of the Act can be exercised in favour of assessee even after the expiry of limitation for filing the appeal and that before July 1, 1985, section 20(1) permitted suo motu revision by the Commi....