The High Court · 2025

Counsel for the Petitioner: SRI S KRISHNA MURTHY Coqnsgl for the Respondents: SRI DANTU SR|N|VAS ( SpL SC FOR CT) Jhe Court made thr:: following: ORDER THE HON'BLE SRI JUSTICE T. VINOD KUMAR AND THE HON'BLE SMT. JUSTICE P.SREE SUDHA Writ Petition No.1984 of 2OO7 ORDER: (per Honble Sri lustice T.Vinod Kumar) This Writ Petition is filed for issuance of a Writ of Mandamus directing the 1't respondent to refund a sum of Rs.|,22,44,7251- together with interest in terms of Section 33E of the Andhra Pradesh General Sales Tax Ac', 1957 (for short, 'the Act') pursuant to the refund claims made by the petitioner in Form KXXIII dt.17.09.2004,

31.12.2005, 04.02.2006 and 25.09.2006 for the assessment years 1994-95, 1996-97, 1998-99, 2002-2003, 2003-2004 and 2004-2005 made under the Act and to declare the proceedings dt.20.01.2006 issued by the 2nd respondent insofar as rejecting the claim for refund for the assessment year 1995-95 and 1996-97 being barred by time, is illegal and arbitrary.

2. Heard learned counsel for the petitioner and the learned Special Standing Counsel for Commercial Taxes appearing for the respondents and perused the record.

3. The case of the petitioner in brief is that it is a registered dealer on the rolls of the 1't respondent and is in the business of execution of a 2 works contra(::; that for the assessment years, 1994-ir5, 1998_99, 2004-20Ct5, rin the 1'r respondent completing the as:;€ssrnent, same hacl i-es ited in refund of tax amounting to Rs.1,20,41 ,t251-; lhat on the l't rel,:ondent passing the orders determining et(ces ; tax paid by the petitic,r'er, it had approached the respondents-aui hcrities and submitted its refund claim in Form XXIII for all the abrove years on

17.09.2004, jr .,10.2005, 04.02.2006 and 25.09.2006, respr)ctvely; that even though lhe petitioner had submitted refund clairn;, since the excess tax de errmined has not been refunded, the petitirtrrer had filed reminder lettr:rs before the 1't and 2nd respondents on 23,08.2006, 22.09.2006 a'i 01.12.2006; and that in spite of thr letirioner submitting th : refund applications and also addressing rr rminders, refund of e;<c( 1;; tax paid is not granted.

4. Petit or.:- further contends that it being a dea er irr {)x€,cution of works contrac it had undertaken various works with the c,et atments of Governnrer of Andhra Pradesh; that in terms of Section t;F of the Act, the deale'erecuting works contract is liable to pay tilx @B% on the value or n':terial incorporated in the execution of worl<s :ontracU and that as pe r the provisions of Section 5H of the Act, trc c )ntractor contract rs ra-rlated to deduct tax at source from the bill:; s tbmitted by the contrar'l.rtr @4olo of the bill value and remit the silm: to the i i I 3 credit of the contractor/dealer; and that the contractee shall also issue a certificate deducting tax at source in Form XX.

5. Petitioner further contends that on the contractee deducting tax at source and issuing Form XX, it had submitted the same with the 1't respondent along with monthly/annual return and claimed credit for such tax deducted and paid on its behalf; that the assessment for the period 1994-95, 1996-97 and 1998-99 were completed by the 1't respondent on 21.12.2000, 07.12.700I and 26.08'2000 resulting in refund of tax in a sum of Rs.12,405/-, 38,14,8431- and 54,0451-, respectively.

6. It is the further case of the petitioner that on the aforesaid assessment orders being passed, it had approached the 1't respondent authority and filed a refund claim in Form XXIII on 17.09.2004; that though it had filed Form XXIII on 17.09.2004, since, it was not aware that it is required to enclose Refund Order issued in Form-C annexed to the assessment order along with Form XXIII in order to claim refund, the same was subsequently filed once again with Form )C(III on

31.10.2005.

7. Petitioner also contends that insofar as assessment years 2002- 2003 and{003-04 are concerned, the same were completed by the r.--' 4 l't respondert: on 26.07.2004 and 16.12.2005 respectivel\., r,vhich also resulted in r r cess tax for which Form C was issued a ong with assessmen: c-ders; and that on receiving the assessment order along with Form C, lt had approached the 1.t respondent and fi ec a refund claim for the i:fcresajd two years along with Form C on 3 t. t0,2005 and

04.02.200e B. Petition:tr further contends that in spite of approarhing the 1't respondr:nl iluthority and submitting Form xxIII encrosir g lherewith Form C issued a long with the assessment order, the exces;s ta ( amount has not ber.ln ri:funded to the petitioner; that on the other t and, the 2'd responcler,l. by his letter dt.20.01.2006, rejected th() (:laim for refund of the t,,r< for the year 7gg4-gs and 7996_97 on the ,lrc,und that the 1* respor:l:nt having issued refund order for the said year on 07.12.20Ct.1 arrj the same having been served on r:he l()tit oner on

27.t2,2001., tl-r: p66rnd applications submitted by the p€tit cner on

31.12.200-5 in l::.rm XXiII, is hlt by the provisions of Secticn 3:A of the Act, which nrat':tates that such refund claims are to be marle within a period of three ;,ears from the date of the order and sincer, th I refund application:; ,n :orm XXIII are filed on 31.10.2005, the same c. nnot be allowed. 5 It is the further contention of the petitioner that though it had

9. submitted applications in Form )CflII for the year assessment years 1gg4-g5, 1996-97 and 1998-99 initially on t7'09'2004, since, the same were not enclosed with Form C issued by the 1'L 'respondent authority' the petitioner submitted Form XXIII once again on 31'10'2005 enclosing therewith the refund notice of final assessment and refund order in Form C, even though the respondents did not choose to issue any notice to the petitioner informing it of the defect in Form XXIII submitted by it on 17.09.2004.

10. Similarly, the petitioner contends that insofar as the refund for the year 2OO2-03 and 2003-04 is concerned, even though the petitionerhadsubmittedrefundapplications|nFormXXIIItothe 1't respondent on 31.10.2005 and 04.02.2006, the amount determined asrefundabletothepetitionerintermsofnoticeofassessmentand refund order has not been paid to the petitioner and as such' the respondents-authoritiesareliabletopayinterestontheaforesald amounts due to the petitioner in terms of Section 33E of the Act' 1i. A counter-affidavit on behalf of the respondents is filed by the 1't respondent. a,) I I I 6

12. By the .lu nter-affidavit, it is stated that the assessrne rt for the year 1994-,)5 lras been completed, vide order dt.22.lL.20o( and the same was sr.r-yed on the petitioner on 29.12.2000. Sini arly, the assessment lor the year 1996_97 was completed, vile order dt.07.12.200I and was served on the petitioner on 27 12.2001. Insofar a:; asl.(lssment year 1998-99 is concerned, the s; me was completed, u,rir'rr assessment order dt.26.08.2000 and the si rid order was served on :1e petitioner on 08.09.2000.

13. By the ( ()unter-affidavit, it is contended that since, il-e irforesaid three assessmr'rrrts resurted in refund of the tax, the petitioner ought to have filed Forr XXIII within a period of three years from .he date of the order and ir,:smuch the petitioner did not submit Forn.r ):xr II within a period of'thr,-:t: years from the date of the order in ternrs ol Section 33A of the Acl -ead with Rule 44AA of the Andhra prace;h General Sales Tax R ul<,r;, 1957 (for short, 'the Rules,), the claim ca rnot be allowed

14. By the c, t, nter-affidavit, it is also contended that the p(rtitioner had submilted f:orm XXIII along with refund orde: in [:or n C in original, only or 31.10.2005, by whtch time, the period of tirree years had elapsed, ar,: since, the said refund applications are filcd beyond the period .f th :e years prescribed under the Act and the Rrie; made I I :t I l l 1 thereunder, the same were rejected by the impugned proceeding by order dt.20.01.2006 issued by the 2nd respondent.

15. By the counter-affldavit, it is further contended that since, the aforesaid rejection order is also proceeding, the petitioner has got effective alternate remedy by way of an appeal under Section 19 of the Act, and therefore, the petitioner ought to have availed the said remedy instead of approaching this Couru and that the respondents deny the claim of the petitioner of it having filed refund applications in Form XXIiI on 77.09.2004, since the person whose signature is affixed as having received had claimed the same is not affixed by him and is a fake one.

16. By the counter-affidavit, it is futher claimed that the refund due to the petitioner for the year 1998-99, was adjusted by way of revision proceeding which got reduced to a sum of Rs.75,29,279l- and as such the claim of the petitioner that it having filed application on 17.09.2004 for a sum of Rs.19,50,478l- is a blatant lie; and that for the assessment year 2002-03, the petitioner Is not entiued for refund of tax of Rs.1,08,715l-, since, the 2nd respondent had revised assessment in exercise of powers under Section 20(2) of the Act, resulting in a demand on the petitioner. 8 :

17. Insofar refund belng claimed by the petitirtr er for the assessmert \.,()ars 2003-04 and 2004-05, it is contended that the 2nd responderrt authority has initiated revislon proceedinr;s b,, invoking powers .lnde,- Section 20(2) of the Act and by is:uilg notice dt.15.02.;2007 '.o the petitioner had called for ceftain inflrm..tion; and that since: fbr tne aforesaid two assessment years, the 2, respondent having init-iat:tl revision proceedings, had passed ar ,)rder on U.12.20Ct7 u,,thholding the tax of Rs.83,63,432l- invtlinrl powers under Section l3C of the Act.

18. By statlng as above, the respondents seek for dis,n issal of the Writ Petitirtn.

19. We hav,, taken note of the respective contentions urrtec

20. Insofar 3s refund for the assessment years 2003-04 arrd 2004_ 05 is conr:,:rnerl l.rhich the respondents by their counter_a flid; vit claim of being subj( :t matter of revision, it is submitted that dL ring the pendency l' tl- r: pps5gnl Writ Petition, the revision proceed ng; having been issued re:;rtlting in refund of Rs.30,79,071/- and Rs 65,(t,Bgll_, respectively, ir all totaling to Rs.95,80,9621-, and the j. id amount having been cr.,:dited to the petitioner,s account on 10.tr6,2( 10, this Couft is of ihr, view that the dispute with regard to retl rd for the : i { o I aforesaid two years, respectively, has been resolved and the same does not survive for consideration.

21. Insofar as the claim of the petitioner having submitted applications in Form XXIU initially on 17.09.2004 for the assessment years 1994-95, 1996-97 and 1998-99, though without enclosing refund order in Form C and the filing of applicatlons in Form XXIII on the said date being within a period of three years from the date of being served with the assessment order, the respondents by their counter-affidavit have denied of the said applications being submitted on the said date. The respondents by their cou nter-affidavit had categorically stated that lhe Record Assistant, who is alleged to have received the Form )C(III applications on 17.09.2004, is a deaf and dumb candidate appointed under Physically Handicapped Quota under the Government Orders and on enquiry in his written statement had stated that the said acknowledgment dt.17.09.2004 was not signed by him and is a fake one.

22. The respondents by their counter-affidavit further claim that immediately after coming to know of the above, the 2nd respondent had issued letter dt.19.02.2007, through registered post, directing the petitioner to prove genuineness of the claim of filing applications in Form XXIII on 17.09.2004. 10

23. Horriev',: -, a perusal of the counter_affidavit f lec by the 1't respc,ncen,. would show that the said authority is not (lrs[)utinq the acknowleJqm rrt issued for receipt oF apprications in Fo.m xx[r on 31.10.2005; or ''or that matter, the acknowledgment issuec fc r filing of Form XXIII fc,' the year 2003-04. A perusal of the sign;tu.e affixed acknowledcinrr the receipt of Form XXIII on 31.10.2005 ,or the year 1994-95 alonc ',vith refund order in Form C, compared wiih Form XXIII said to havt br:en acknowledged on 17.Og.2004 would shov _hat both signatures; are identical and affixed by the same person The same person had al:;o received the refund application for the yr:ar 2003_04 on 04.02.2006 and also all other communications addr,:sse J by the petitioner tr.r 1 't respondent authority during the months c f I,ebruary, 2006 and Dr:ce,nrber, 2006.

24. Though 1.he respondents by the cou nter-affidavit, hac cltimed of the Record Asl;istant, who is a deal and dumb candidat€ a lpointed under Phy:;i,':all), Handicapped euota under Government O-cer: , havrng denied his sicnature, have not placed on record any rna..erial to substantiate th(: claim that the said Record Assistant in .a:t was not working at l-e said position on the date and al other acknowledgments issued immediately before and after the s rid date bear acknowlecl;ment of another person for this Court to ecr:ept the = : t I I : i i T I 1,1, , claim made by the respondents in the counter-affldavit. Further the 1't respondent along with the counter did not file any documents to show of the alleged enquiry or the written statement given by the Record Assistant. Thus, the claim of the 1st respondent by the counter-affidavit of acknowledgment of ihe applications in Form XXIII dt.17.09.2004 submitted by the petitioner being fake, does not appeal to this Court for being accepted.

25. Since, this Court has come to a conclusion that the petitioner having approached the respondents - authorities and filed applications in Form XXIII on 77.09.2004, the same are to be considered having been filed within the time prescribed under Section 33A of the Act read with Rule 44AA of the Rules, even though the petitioner did not enclose with the refund order, as issued to it in Form C.

26. As the petitioner had submitted refund applications in Form XXIII 0n 17.09.2004, though defective, the petitioner having cured the said defect by submitting second set of refund applications in Form XXIII on 31.10.2005 enclosing therewith Form C, the said applications ought to have been considered as having been validly filed and the same cannot be rejected by the 1't respondent as having been flled beyond the period of three years prescribed under the Act and the Rules -- 12

27. Further . it is to be noted that the 1st and 2nd responJe tts do not dispute th:: r,::eipt of reminder letters dt.23.08.2006, 22.C9.2006 &

01.12.200(, vrhereby the petitioner had claimed of it haviIg ;ubmitted Form XXtlt ilitially on 17.09.2004, and it is only on tire petitioner approachirg 1-is Court by the present Writ Petition, the rtrspondent claim oF nlt 'aving received the refund applications ln F(,rm XXIII stated to hav€ leen submitted by the petitioner on 17.09.200 1.

28. It js al',;rt to be noted that the petitioner herein i: a busrness concern and r.zrnnot be presumed to let of such refund oL,e to it. On the other hanrl, it is the usual practice that in order to se,:k refund of excess tax frcnr the respondents - authorities, one needs tc undergo various :;teos -l finally receive the refund, as would be ( vi(lent From the facts o' ]!i - present case, since for the year 2003-04 ;rnc 2004-05 though the re,'Lrnd was due, the same was withheld on ihe r lround of revision prcce.rling having been initiated by the higher aut -o ity under Section .1012) ()f the Act and invoking Section 33C of tlre Act such refund be ng v,ithheld.

29. Furtlrer ln every case where refund is due, the re:;ocndents - authoritie:; ilutomatically invoke Section 33C of the Act tc rvit rhold the refund or thr, ground that refund is likely to adverse:I1 a ffect the revenue. E',,er rn the facts of the present case, though t.. i: claimed i, 'i , *i & , IIIi 3t I I I 13 I that the 2nd respondent herein having passed an order on 17.02.2007 withholding tax of Rs.83,63,4321- due to the petitioner for the assessment years 2003-04 and 2004-05 by invoking powers under Section 33C of the Act, on passing of final orders in the said revision proceeding on 29.04.2010, the same resulted in refund of Rs.95,80,862/- which is in excess of the tax refund originally due as per the orders rather than the revision resulting in reduction of the refund for the respondents to claim that such refund would adversely affect the revenue. (see Pulp N' Fack Private Ltd, v/s. Co m m ercia I Tax Officel).

30. In view of the above, this Court is oF the view that the counter- affidavit of the respondents is liable to be rejected. Accordingly, we do 50

31. In view of the conclusions arrived at by us as above, this Court is of the view that the action of the 1tt respondent in not processing , I the refund applications in time and the 2nd respondent on such refund applications being filed having initiated revision proceeding which only ended ln higher amount being refunded to the petitioner, than originally assessed, this Court is of the view that the impugned ' MANU/AP/0094/2009 i-'----n t4 proceeding 0f the 1.t respondent in rejecting the refunt .ipplications by his order, dt.20.01.2006, for the assessment years i994-95 and 1996-97,,:ar -ot be sustained as being valid.

32. Ac(orcirgry, the impugned proceedings dt.20.01.2()06 issued by the 1't respoldent is hereby set aside and the 1.r responcen _ authority is directed tc lrocess the refund applications of the peiililtr er for the assessment ,,e:ars 1994_95 and 1996_97 and grant refur d of the amount due ;,l,1pg with interest due thereon in terms of tf re lrovisions of Section 33[ of the Act within a period of two months fron the date of receipt of a r opy of this order. Accordi,r;ly, the Writ petition is allowed. No order as r:o costs.

34. Pencinct riscellaneous petitlons, tf any, shall stand (ics3d in the light of this fin..r order \ To, 1 z !) 4 5 KKS BS //TRUE COPY// SD/-I. "IRUMALA DEVI ,/ DEPL'rY RE9ISTRARJ_ SEI)TION OFFICER COMMERCIT:\l- TAX OFFICER BASHEERBAG IRCLE, Hvderabad Deputy Comn'r,ssioner (CT), Abids Division, Hyderabad. One CC tc Sl.il S KRISHNA MURTHy Advocate [OpUC] One CC to SFI DANTU SRINIVAS ( SPL SC FOR CT) [OF,U()] Two CD Ccpiers l',t\\r HIGH COURT DATED:28 t05t20Zs ORDER WP.No.1984 of 2OOT vACAT'ION COURT .4' : , .9 rl\ *' 'i -l' ,.. ,i '\.,.,'' \ \ '-_:-:-i-,2 i-- .2' ALLOWING THE WRIT PETITION WITHOUT COSTS ?t h 6 L 1,