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TMI Blog2008 (3) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... rom July 1, 1997 to February 6, 2004. - Writ Petition No.173 of 2008 - - - Dated:- 14-3-2008 - REBELLO F.I. AND MOHITE R.S. , JJ. The judgment of the court was delivered by R.S. MOHITE J. Rule. By consent of the parties rule made returnable forthwith and parties are heard. This writ petition filed by M/s. Gharda Chemicals Ltd. (hereinafter referred to as the petitioner ) seeks a writ of mandamus or a direction directing the Commissioner of Sales Tax (hereinafter referred to as the respondent ) to grant interest to the petitioner under section 44A of the Bombay Sales Tax Act, 1959. The brief relevant facts of the case are as follows: (a) By an assessment order dated March 31, 1997, the Assistant Commissioner of Sales T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner then made representation to the Commissioner of Sales Tax and challenged the order passed by the Additional Commissioner of Sales Tax refusing to grant interest for the delayed period. This application was rejected by the Commissioner of Sales Tax on July 6, 2007 and in these circumstances, the petitioner filed the present petition for the reliefs mentioned hereinabove. We have perused the record. Before we deal with the contentions on merits, we would like to first dispose of the preliminary objection which was raised on behalf of the respondent to the effect that the petitioner's petition be dismissed as the petitioner had an equally efficacious remedy by way of an appeal under section 56 of the Bombay Sales Tax Act. It was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has taken a view that in view of rule 52A of the Bombay Sales Tax Rules, 1959 appeal was not maintainable before the Tribunal. Reliance has been placed upon an earlier judgment of the Tribunal in the case of Elcopak v. State of Maharashtra (Misc. Application Nos. 9 to 12 of 1993, decided on September 30, 1994). It is clear that the petitioner had genuine doubts about the maintainability of the appeal and thus approached this court directly in its writ jurisdiction. We, therefore, propose to entertain this petition by keeping the question of maintainability of an appeal open to be decided in an appropriate case. On behalf of the Revenue, it is contended that as determined by the Additional Commissioner of Sales Tax, Pune and the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that where the amount becomes refundable by virtue of an order of the Tribunal, the interest under the provisions of this section shall be payable from the date immediately following the expiry of period of ninety days from the date of receipt of the order of the Tribunal by the officer whose order forms the subject of the appeal or revision proceedings before the Tribunal, to the date of refund. Explanation. If the delay in granting the refund within the period of ninety days aforesaid is attributable to the dealer, whether wholly or in part, the period of the delay attributable to him shall be excluded for the period for which interest is payable. (2) Where any question arises as to the period to be excluded for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affect the Revenue, such authority may, with the previous approval of the Commissioner, withhold the refund till such time as the Commissioner may determine. In the present case, the procedure prescribed under section 44B was never followed. Even assuming that same has been followed, under section 44B(2), the assessee would become entitled to refund amount if the appeal/further proceeding was decided in his favour and the State Government was statutorily bound to pay such interest from the date immediately following the expiry of the period of 90 days of the order referred to under section 44B(1) till the date of the refund. From a reading of the aforesaid two sections, it is clear that merely because a revision is pending, the State Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X
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