9911796707
TMI Blog1990 (8) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... ctively under the Central Sales Tax Act, 1956. It is further alleged that the assessment was made erroneously treating the consignments of cotton yarn sent to the petitioner's agents and depots as inter-State sales. Aggrieved by the assessment orders, the petitioner filed appeals to the Appellate Deputy Commissioner of Commercial Taxes, Kakinada, who confirmed the orders against which appeals in T.A. Nos. 551 and 1528 of 1987 were preferred to the Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad. While the abovementioned appeals were pending, the respondents collected sales tax pursuant to the assessment orders referred to supra, by resorting to drastic coercive steps. The total amount of sales tax collected by the respondents, pursuant to the abovementioned assessment orders, came to Rs. 30,75,300.50. While so, the Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad, allowed the appeals in T.A. Nos. 551 of 1987 and 1528 of 1987 by its order dated January 11, 1989, setting aside the orders of assessment in respect of assessment years 1982-83 and 1983-84 and remanded the matter to the assessing authority for fresh disposal in the light of the observations contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund of the amount. Questioning the abovesaid order, Writ Petition No. 16209 of 1989 was filed by the petitioner to declare that the action of the respondents in seeking to withhold the refund of excess Central sales tax due to the petitioner in respect of the assessment years 1982-83 and 1983-84 is illegal and without jurisdiction. In this writ petition, it is contended by the petitioner that the petitioner is entitled to refund of the amount by virtue of the orders of the Sales Tax Appellate Tribunal in the appeals in T.A. Nos. 551 and 1528 of 1987 under section 33-B of the Act. It is further contended that the respondents have the power to withhold under section 33-C of the Act, provided the conditions precedent for the exercise of the power under the said section are satisfied. It is alleged that the conditions are not satisfied. It is further contended that section 33-C of the Act is an exception and therefore, it should be strictly construed. It was specifically stated that the second respondent has no power and authority to pass the order under section 33-C of the Act. It is only the assessing authority who should have passed the order withholding the refund of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders which were set aside in appeals, became due to it and the assessing authority is bound to refund the amount to the petitioner without its having to make any claim in that behalf. The second contention raised on behalf of the petitioner is that the ingredients of section 33-C of the Act are not satisfied in the present case as no order withholding the refund was passed by the assessing authority. The order that was passed on October 31, 1989 is that of the second respondent. The second respondent under section 33-C of the Act has to give prior approval to the assessing authority to withhold the refund. It is the assessing authority who has to form an opinion that the grant of the refund of tax is likely to adversely affect the revenue and pass an order withholding the refund with the prior approval of the Deputy Commissioner concerned. In the present case, the second respondent alone issued the order dated October 31, 1989 and that will not satisfy the ingredients of section 33-C of the Act. On the other hand, the learned Government Pleader contended that the assessing authority formed the opinion that the grant of refund is likely to adversely affect the revenue and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refund of the tax till such time the Deputy Commissioner may determine. In this case, as seen from the record placed before us, the assessing authority formed an opinion that refund of the tax will adversely affect the revenue and then sought the permission of the Deputy Commissioner for withholding the refund of the tax and after obtaining approval of the second respondent herein, passed an order dated November 6, 1989, withholding the refund. Entire proceedings culminating in the passing of the order by the assessing authority dated November 6, 1989, is in accordance with the provisions of section 33-C of the Act and it is not possible for this Court to issue any direction for refund as prayed for in W.P. No. 12663 of 1989 and the order of the second respondent herein dated October 31, 1989, giving approval to the assessing authority to withhold the refund of the tax cannot be questioned as it was passed in terms of section 33-C of the Act. Several contentions were raised by the petitioner stating that no orders were passed on his representation for refund by the authorities and that the order passed by the second respondent herein dated October 31, 1989, is not in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
