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TMI Blog2014 (11) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,186,188,189,190,192,193,194,202 of 2001 - - - Dated:- 23-11-2012 - GODA RAGHURAM AND RAMACHANDRA RAO M.S., JJ. For the Appellant : P. Balaji Varma, Special SC for CT, For the Respondents : M.V.K. Moorthy, M.V.J.K. Moorthy, M.R. Mohd Irfan and M.V.J.K. Kumar ORDER :- The order of the court was made by M.S. RAMACHANDRA RAO J.- All these revision petitions are filed by the State under section 22 of the Andhra Pradesh General Sales Tax Act, 1957 (for short, the Act ) challenging the common order dated October 27, 2000 of the Sales Tax Appellate Tribunal, Hyderabad. The respondents in all these revision petitions are engaged in the business of sale of soft drinks and food stuffs. All of them had been assessed to tax originally by various assessing authorities for the assessment years 1982-83, 1983-84, 1984-85 and 1985-86. They were subjected to tax on sales of soft drinks and food sold in their respective hotels/bar and restaurants during the said assessment years, originally, whether or not they have collected the said tax from the customers. In view of certain decisions of the Supreme Court, supplies made by these assessees to consumers were not tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was adjudicated by the Supreme Court in its judgment reported in Shri Krishna Enterprises v. State of Andhra Pradesh [1990] 76 STC 67 (SC). The Supreme Court held that in view of the 46th Amendment of the Constitution and the consequent amendment to the Andhra Pradesh General Sales Tax Act, 1957, all the petitioners before it were entitled to an opportunity to satisfy the appropriate authority that they had not levied or collected tax on the supply of soft drinks and food until September 13, 1985 and that they are entitled to exemption under section 6 of the 46th Amendment and the State law. It therefore set aside the assessments made by the assessing officers concerned and directed them to give opportunity to the assessees to satisfy them that no tax was collected until September 13, 1985. It directed that, after enquiry, if it is found that the assessees are not liable, then the whole, or if the assessees are found liable only partly, then the excess, shall be refunded to the assessees within one month of determination along with interest at 12 per cent from the date of payment till the date of refund. In the event of liability being found to be in excess of what has been coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 190 of 2001, 192 of 2001, 193 of 2001, 194 of 2001, 202 of 2001, 207 of 2001, 208 of 2001, 220 of 2001, 222 of 2001, 225 of 2001, 226 of 2001, 230 of 2001, 260 of 2001, 114 of 2002 and 241 of 2003) followed a peculiar procedure like filing petitions under section 20 of the Act before the Deputy Commissioner (CT), Chittoor, for revision of the assessment orders on the lines of the order of the Supreme Court in the above case. They were granted relief by the Deputy Commissioner. It is important to note that the orders of refund of tax granted either by the Appellate Deputy Commissioners or the Deputy Commissioners did not expressly mention that refund should also be made together with interest at 12 per cent per annum as was directed by the Supreme Court in the above case. In view of this, the respective assessing authorities issued orders of refund in form C either ordering refund or adjustment to the future tax liabilities but did not order any payment of interest at 12 per cent per annum. Questioning the denial of interest at 12 per cent per annum, the respondents/assessees filed appeals before the concerned Appellate Deputy Commissioners. Those Appellate Deputy Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of demand may have been issued, and shall then refund the balance, if any. 33A. Form of claim for refund and limitation.-(1) Every claim for refund under section 33, shall be made by the assessee or licensee in such form and verified in such manner as may be prescribed, on or after the date on which the tax or the licence fees in respect of which the claim is made was directed to be refunded. (2) No such claim shall be allowed unless it is made within three years from the date specified in sub-section (1). 33B. Refund on appeal, etc.-Where as a result of any order passed in appeal or other proceeding under this Act, refund of any amount becomes due to the assessee or licensee, the assessing or licensing authority shall refund the amount to the assessee or licensee without his having to make any claim in that behalf, or adjust or apply, such amount as provided in section 33. S. 33BB. Non-refund of tax in certain cases.-Where a levy and collection of tax is held invalid by any judgment or order of a court or Tribunal, it shall not be necessary to refund any such tax to the dealer unless it is proved by the dealer to the satisfaction of the assessing authority that the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the date of such order, the State Government shall pay to the assessee or the licensee simple interest at twelve per cent per annum on the amount of refund due from the date immediately following the expiry of the period of six months aforesaid to the date on which the refund is granted. (2) Where the refund is withheld under the provisions of section 33C, the State Government shall pay interest at the aforesaid rate on the amount of the refund ultimately determined to be due as a result of the appeal or further proceeding for the period commencing after the expiry of six months from the date of the order referred to in section 33C to the date the refund is granted. The Special Government Pleader for Commercial Taxes contended that the respondents/assessees/dealers were not entitled to interest at 12 per cent on the excess tax collected found refundable/adjustable, that only the petitioners in the batch of cases decided by the Supreme Court in Shri Krishna Enterprises' case [1990] 76 STC 67 (SC) were entitled to interest at such rate and the respondents, not being parties in the Supreme Court, cannot be granted the said relief. It is also contended that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court in the said case and that the State cannot discriminate between the petitioners who approached the Supreme Court in the said case and the respondents herein who did not. He also relied upon article 265 of the Constitution of India and contended that the State could not have levied or collected the tax on supply of food and soft drinks (prior to 46th Amendment to the Constitution of India and the amendments to the Andhra Pradesh General Sales Tax Act, 1957 (introducing section 5C by Act 18/85 with retrospective effect from February 2, 1983)) and the collection of tax was without the authority of law and therefore the State is bound to refund the tax illegally collected by it with interest for the delay in refunding the same. We have considered the respective submissions. In these cases, the State has admitted that refunds have already been issued to the assessees. The State is only contesting the payment of interest at 12 per cent per annum to the assessees on the amounts refunded. We are of the view that the Sales Tax Appellate Tribunal erred in holding that the State is liable to pay interest on the refund of tax in all cases because of the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not apply where a refund is due to an assessee pursuant to an order passed in appeal or other proceeding under the Act. In the latter case, section 33F alone would apply. The contention of the Revenue that there should be a claim for refund under section 33A read with rule 44AA in form XXIII and making of such claim is a condition precedent for grant of interest on the refund is also not tenable. Where the refund is pursuant to or as a result of any order passed in appeal or other proceeding under the Act, the assessee acquires under section 33B, a right to refund of such amount without the assessee having to make any claim in that behalf, or adjust or apply, such amount as provided in section 33. So in situations governed by section 33B, it is not necessary for an assessee to make a claim for refund in order to get it. Consequently, under section 33 F, if the assessee is entitled to refund pursuant to an order referred to in section 33B, then, the State is liable to pay interest at 12 per cent per annum on the amount of refund due from the date immediately following the expiry of the period of six months from the date of such order to the date on which the refund is grant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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