TaxTMI 
TaxTMI 
2021 (7) TMI 842
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.... to the orders of the Telangana Value Added Tax Appellate Tribunal, Hyderabad (for short, 'the Tribunal'). 2. The petitioner contends that the 1st respondent had completed the assessment for the period April, 2009 to March, 2012 by order dt. 19.01.2013; that the goods sold by the petitioner namely, Mango pulp/puree, was classified as falling under Entry 107(b) of the IV Schedule to the Telangana Value Added Tax Act, 2005 (for short, 'the Act') and subjected to tax at 4% / 5%. Similar classification was applied even in respect of sales made during the period April, 2012 to March, 2013 also. 3. However, the 2nd respondent, being the revisional authority, was of the view that said orders of assessment were prejudicial to the interest of ....
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....ax period 2012-13, respectively, by virtue of proviso to Section 33(2) of the Act; that the respondents, in particular the 1st respondent, is required to refund the tax paid within a period of 90 days; that if refund of tax paid is not made within the period stipulated, the amount of refund shall carry interest at 1% per month for the period of delay as per proviso to Section 33(2) and Section 39(2) of the Act; and that for the purpose of granting refund pursuant to the order of the Tribunal, no application is required to be made by the petitioner as a duty is cast on the respondents to grant refund. 7. It is the contention of the petitioner that the petitioner became entitled for refund, consequent upon the Tribunal allowing the appeals....
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....he appropriate authority under Rule 59(12) of the Telangana Value Added Tax Rules, 2005 (for short, 'the Rules'), to sanction refund in excess of Rs. 10.00 lakhs, ought to have sanctioned the refund of the difference of tax paid pursuant to the order of the 2nd respondent within the time prescribed under the Act. 10. The petitioner contends that the respondents cannot deny the refund due to the petitioner on the ground of the pendency of the tax revision cases before the Hon'ble High Court, as has been held by this Court in the cases of Pulp 'N' Pack Private Limited V/s. Commercial Tax Officer (2009) 23 VST 573 and BSNL V/s. State of Andhra Pradesh (2009) 25 VST 511 (AP). 11. Per contra, Sri Sai Krishna, learned Assistant Government P....
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....th, beyond the period of 90 days till the date of refund. 14. We have not come across a case where the respondents have granted refund, be it of substantial amount or otherwise, along with interest under Section 39(2) of the Act, on their own, even when the refund is sanctioned. Wherever, a dealer/assessee seeks refund or makes a claim for interest for the delayed refund, it invariably is required to invoke the jurisdiction of the Court under Article 226 of the Constitution of India. The attitude of the respondents appears to be that the grant of refund is a favour to the dealer/assessee and refund is a gratuitous payment, forgetting the fact that the statute provides for payment of interest, if the refund is not made within the stipulat....
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....plying the principle deduced from the above, to the scheme of the Act, the usage of the word "shall" mandates the respondents to refund the difference of tax paid by an appellant like petitioner for filing and maintaining an appeal within ninety days. If such refund is not granted, the amount would become refundable along with interest once the period of ninety days expires. The only exception for withholding the refund due as per Section 33 is exercise of powers under Section 40 of the Act and no other, including the ground of pendency of revision before the Higher court. 19. Whether the State can deny refund during the pendency of the revision before this Court is no longer res integra. This Court in Pulp 'N' Pack Private Limited and B....
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....e petitioner, no order/proceeding to that effect is shown to this Court. The said statement made on behalf of the respondents is also disputed by the learned counsel for the petitioner, as no such communication withholding the refund has been received by the petitioner either before filing of the Writ Petition or during the pendency of the present proceeding. Thus, this Court cannot accept the statement made on behalf of the respondents that the 3rd respondent, having exercised powers conferred under Section 40(2) of the Act, has decided to withhold the refund due to the petitioner. 23. In view of the above, the petitioner is entitled to succeed in this Writ Petition. 24. Accordingly, the Writ Petition is allowed and the respon....