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2009 (7) TMI 1157 - HC - VAT and Sales TaxWhether the respondent-authorities have unfettered right to withhold the amount payable to the petitioner by way of refund under the provisions of section 40(2) of the Andhra Pradesh Value Added Tax Act, 2005? Held that - In the event of the State succeeding in the aforestated TRC, the petitioner will have to make payment of tax along with interest thereon and, therefore, in that event, the State is not to suffer at all, whereas, at present, when the petitioner has already succeeded before the STAT and if the amount payable to the petitioner is withheld, the petitioner would be adversely affected. The amount of refund has been wrongly withheld and, therefore, the said amount along with interest thereon shall be paid to the petitioner within four weeks from the date of receipt of this order in accordance with law. If the amount is not paid within four weeks, the amount payable to the petitioner would go on mounting, and in that event, the amount of interest which might have to be paid after four weeks, should be recovered from the officer responsible for causing delay so that the State exchequer may not suffer further
Issues Involved:
1. Whether the respondent-authorities have an unfettered right to withhold the amount payable to the petitioner by way of refund under section 40(2) of the Andhra Pradesh Value Added Tax Act, 2005 (APVAT Act). 2. Whether the reasons provided by the respondent-authorities for withholding the refund were justifiable and legally valid. Issue-wise Detailed Analysis: Issue 1: Unfettered Right to Withhold Refund under Section 40(2) of APVAT Act The core issue in this case is whether the respondent-authorities have an unfettered right to withhold the refund amount payable to the petitioner under section 40(2) of the APVAT Act. The court examined the provisions of section 40(2) and noted that while the authorities do have the power to withhold refunds, this power is not absolute and must be exercised with discretion. The court emphasized that the power to withhold refunds must be based on sound reasons and should be exercised only after forming an opinion that granting the refund would adversely affect the Revenue. The court highlighted that the Deputy Commissioner must record reasons for withholding the refund, ensuring that the decision is not arbitrary but based on a thorough consideration of the facts. Issue 2: Justifiability of Reasons for Withholding Refund The court scrutinized the reasons provided by the respondent-authorities for withholding the refund. The petitioner had succeeded before the Andhra Pradesh Sales Tax Appellate Tribunal (STAT), and the amount of Rs. 14,52,29,260 became payable. However, the refund was withheld on the grounds that it would adversely affect the Revenue, especially since a tax revision case (TRC No. 245 of 2008) was pending. The court found that the reasons provided were insufficient and lacked a proper justification. The court noted that the mere filing of an appeal or revision case does not justify withholding the refund. The Deputy Commissioner and the Commissioner of Commercial Taxes failed to record specific reasons that demonstrated a direct nexus between withholding the refund and protecting the Revenue's interest. The court pointed out that the authorities did not consider whether the petitioner was a reliable entity or if there was a risk of the petitioner vanishing or being unable to repay the amount if the Revenue succeeded in the litigation. Conclusion: The court concluded that the respondent-authorities had wrongly withheld the refund amount without providing justifiable reasons. The court quashed the impugned order and directed the respondent-authorities to pay the refund amount along with interest within four weeks. The court also warned that any delay beyond four weeks would result in the mounting of interest, and the responsible officer would be held accountable for causing further delay, ensuring that the State exchequer does not suffer additional losses. Final Order: The impugned order passed under section 40(2) of the APVAT Act was quashed and set aside. The petition was allowed with no order as to costs. The respondent-authorities were directed to pay the refund amount along with interest within four weeks from the date of receipt of the court's order.
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