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TMI Blog1995 (11) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... order it is seen that on the basis of contents of para 4 thereof certain concessions were made. 3.. On the basis of the appellate order, the petitioner by exhibit P3 dated November 7, 1994, prayed for a refund of Rs. 45,634 in view of the fact that the order was received on August 1, 1994. 4.. With regard to the entitlement of a refund of Rs. 45,634 reliance is placed on the provisions of section 44(1) of the Kerala General Sales Tax Act, 1963, providing that the dealer would be entitled to interest at 6 per cent on the amount due to him from 90 days of the date of receipt of the order in appeal. The legal right to entitlement of refund is based on the above provision. 5.. However it appears that on receipt of the proceedings, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant was entitled to refund of an amount of Rs. 45,635 paid in excess of the sales tax due. The complaint of the appellant is that along with exhibit P4, no refund voucher was issued by the sales tax authorities. He therefore came to this Court filing O.P. No. 9737 of 1995 seeking a writ of mandamus to the second respondent to issue the refund forthwith and also to pay statutory interest at 6 per cent from October 30, 1994 till the date of actual refund. 2.. The original petition was filed on June 20, 1995. During the pendency of the original petition, exhibit P6 order dated July 4, 1995 was issued adjusting an amount of Rs. 27,845 out of the excess amount of Rs. 45,635 paid for the year 1988-89, towards dues for the year 1993-94. Thus t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e power under section 43 of the Act. In the absence of such a notice, the appellant would submit that exhibit P6 should be set aside as having been issued in violation of the provisions contained in section 43 of the Act regarding notice to the assessee as also in violation of the principles of natural justice. Learned counsel appearing on behalf of the appellant further contended that even if exhibit P6 is to be treated as an order coming under section 44(3) of the Act, in the absence of a notice to the assessee, it is bad in law, having been issued in violation of the principles of natural justice, as no notice was given before exhibit P6 order was issued. Learned counsel points out that in the statement filed by the second respondent on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed after modifying the original assessment order as per the directions given by the Tribunal. In the above assessment order, it was found that the total sales tax due from the assessee for the year 1988-89 would come to Rs. 22,186 whereas he had paid an amount of Rs. 68,133 towards sales tax for the relevant year. Under these circumstances, the appellant was found eligible for refund of an amount of Rs. 45,635 as excess tax paid. Under section 44(3) of the Act, the assessing authority has been given the power to adjust the amount due to be refunded under sub-section (1) or sub-section (2), towards the recovery of any amount due, on the date of adjustment from the dealer. It is in exercise of the above power, exhibit P6 has been issued. We d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we find no illegality in exhibit P6 order which was issued on July 4, 1995 at a time when the Tribunal had not issued exhibit P7 order of stay. Therefore, we decline the prayer made by the appellant to quash exhibit P6. 8.. Regarding the question of interest payable to the appellant, the contention that the period provided under sub-section (4) of section 44 expired on October 30, 1994, is not denied by the respondents. If that be so, the appellant is entitled to interest at 6 per cent on the total amount of Rs. 45,635 from October 30, 1994 to July 4, 1995, i.e., the date of exhibit P6 order. As mentioned earlier, the appellant had admitted that after exhibit P6 order was issued, an amount of Rs. 17,790 was offered, which he did not a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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