Telangana High Court
M/S. Sushee Hitech Construction P Ltd., vs Commercial Tax Officer Basheerbagh And ... on 28 May, 2025
Author: T.Vinod Kumar
Bench: T.Vinod Kumar, P.Sree Sudha
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
AND
THE HON'BLE SMT. JUSTICE P.SREE SUDHA
Writ Petition No.1984 of 2007
ORDER:(per Hon'ble Sri Justice T.Vinod Kumar) This Writ Petition is filed for issuance of a Writ of Mandamus directing the 1st respondent to refund a sum of Rs.1,22,44,725/- together with interest in terms of Section 33E of the Andhra Pradesh General Sales Tax Act, 1957 (for short, 'the Act') pursuant to the refund claims made by the petitioner in Form XXXIII dt.17.09.2004, 31.12.2005, 04.02.2006 and 25.09.2006 for the assessment years 1994-95, 1996-97, 1998-99, 2002-2003, 2003-2004 and 2004-2005 made under the Act and to declare the proceedings dt.20.01.2006 issued by the 2nd respondent insofar as rejecting the claim for refund for the assessment year 1995-95 and 1996-97 being barred by time, is illegal and arbitrary.
2. Heard learned counsel for the petitioner and the learned Special Standing Counsel for Commercial Taxes appearing for the respondents and perused the record.
3. The case of the petitioner in brief is that it is a registered dealer on the rolls of the 1st respondent and is in the business of execution of 2 works contract; that for the assessment years, 1994-95, 1998-99, 2004-2005, on the 1st respondent completing the assessment, the same had resulted in refund of tax amounting to Rs.1,20,44,725/-; that on the 1st respondent passing the orders determining excess tax paid by the petitioner, it had approached the respondents-authorities and submitted its refund claim in Form XXIII for all the above years on 17.09.2004, 31.10.2005, 04.02.2006 and 25.09.2006, respectively; that even though the petitioner had submitted refund claims, since the excess tax determined has not been refunded, the petitioner had filed reminder letters before the 1st and 2nd respondents on 23.08.2006, 22.09.2006 and 01.12.2006; and that in spite of the petitioner submitting the refund applications and also addressing reminders, refund of excess tax paid is not granted.
4. Petitioner further contends that it being a dealer in execution of works contract, it had undertaken various works with the departments of Government of Andhra Pradesh; that in terms of Section 5F of the Act, the dealer executing works contract is liable to pay tax @8% on the value of material incorporated in the execution of works contract; and that as per the provisions of Section 5H of the Act, the contractor contract is mandated to deduct tax at source from the bills submitted by the contractor @4% of the bill value and remit the same to the 3 credit of the contractor/dealer; and that the contractee shall also issue a certificate deducting tax at source in Form XX.
5. Petitioner further contends that on the contractee deducting tax at source and issuing Form XX, it had submitted the same with the 1st respondent along with monthly/annual return and claimed credit for such tax deducted and paid on its behalf; that the assessment for the period 1994-95, 1996-97 and 1998-99 were completed by the 1st respondent on 21.12.2000, 07.12.2001 and 26.08.2000 resulting in refund of tax in a sum of Rs.12.405/-, 38,14,843/- and 54,045/-, respectively.
6. It is the further case of the petitioner that on the aforesaid assessment orders being passed, it had approached the 1st respondent authority and filed a refund claim in Form XXIII on 17.09.2004; that though it had filed Form XXIII on 17.09.2004, since, it was not aware that it is required to enclose Refund Order issued in Form-C annexed to the assessment order along with Form XXIII in order to claim refund, the same was subsequently filed once again with Form XXIII on 31.10.2005.
7. Petitioner also contends that insofar as assessment years 2002- 2003 and 2003-04 are concerned, the same were completed by the 4 1st respondent on 26.07.2004 and 16.12.2005 respectively, which also resulted in excess tax for which Form C was issued along with assessment orders; and that on receiving the assessment order along with Form C, it had approached the 1st respondent and filed a refund claim for the aforesaid two years along with Form C on 31.10.2005 and 04.02.2006.
8. Petitioner further contends that in spite of approaching the 1st respondent authority and submitting Form XXIII enclosing therewith Form C issued along with the assessment order, the excess tax amount has not been refunded to the petitioner; that on the other hand, the 2nd respondent by his letter dt.20.01.2006, rejected the claim for refund of the tax for the year 1994-95 and 1996-97 on the ground that the 1st respondent having issued refund order for the said year on 07.12.2001 and the same having been served on the petitioner on 27.12.2001, the refund applications submitted by the petitioner on 31.12.2005 in Form XXIII, is hit by the provisions of Section 33A of the Act, which mandates that such refund claims are to be made within a period of three years from the date of the order and since, the refund applications in Form XXIII are filed on 31.10.2005, the same cannot be allowed.
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9. It is the further contention of the petitioner that though it had submitted applications in Form XXIII for the year assessment years 1994-95, 1996-97 and 1998-99 initially on 17.09.2004, since, the same were not enclosed with Form C issued by the 1st respondent authority, the petitioner submitted Form XXIII once again on 31.10.2005 enclosing therewith the refund notice of final assessment and refund order in Form C, even though the respondents did not choose to issue any notice to the petitioner informing it of the defect in Form XXIII submitted by it on 17.09.2004.
10. Similarly, the petitioner contends that insofar as the refund for the year 2002-03 and 2003-04 is concerned, even though the petitioner had submitted refund applications in Form XXIII to the 1st respondent on 31.10.2005 and 04.02.2006, the amount determined as refundable to the petitioner in terms of notice of assessment and refund order has not been paid to the petitioner and as such, the respondents - authorities are liable to pay interest on the aforesaid amounts due to the petitioner in terms of Section 33E of the Act.
11. A counter-affidavit on behalf of the respondents is filed by the 1st respondent.
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12. By the counter-affidavit, it is stated that the assessment for the year 1994-95 has been completed, vide order dt.22.12.2000 and the same was served on the petitioner on 29.12.2000. Similarly, the assessment for the year 1996-97 was completed, vide order dt.07.12.2001, and was served on the petitioner on 27.12.2001. Insofar as assessment year 1998-99 is concerned, the same was completed, vide assessment order dt.26.08.2000 and the said order was served on the petitioner on 08.09.2000.
13. By the counter-affidavit, it is contended that since, the aforesaid three assessments resulted in refund of the tax, the petitioner ought to have filed Form XXIII within a period of three years from the date of the order and inasmuch the petitioner did not submit Form XXIII within a period of three years from the date of the order in terms of Section 33A of the Act read with Rule 44AA of the Andhra Pradesh General Sales Tax Rules, 1957 (for short, 'the Rules'), the claim cannot be allowed.
14. By the counter-affidavit, it is also contended that the petitioner had submitted Form XXIII along with refund order in Form C in original, only on 31.10.2005, by which time, the period of three years had elapsed, and since, the said refund applications are filed beyond the period of three years prescribed under the Act and the Rules made 7 thereunder, the same were rejected by the impugned proceeding by order dt.20.01.2006 issued by the 2nd respondent.
15. By the counter-affidavit, it is further contended that since, the aforesaid rejection order is also proceeding, the petitioner has got effective alternate remedy by way of an appeal under Section 19 of the Act, and therefore, the petitioner ought to have availed the said remedy instead of approaching this Court; and that the respondents deny the claim of the petitioner of it having filed refund applications in Form XXIII on 17.09.2004, since the person whose signature is affixed as having received had claimed the same is not affixed by him and is a fake one.
16. By the counter-affidavit, it is further claimed that the refund due to the petitioner for the year 1998-99, was adjusted by way of revision proceeding which got reduced to a sum of Rs.15,29,279/- and as such the claim of the petitioner that it having filed application on 17.09.2004 for a sum of Rs.19,50,478/- is a blatant lie; and that for the assessment year 2002-03, the petitioner is not entitled for refund of tax of Rs.1,08,715/-, since, the 2nd respondent had revised assessment in exercise of powers under Section 20(2) of the Act, resulting in a demand on the petitioner.
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17. Insofar refund being claimed by the petitioner for the assessment years 2003-04 and 2004-05, it is contended that the 2nd respondent authority has initiated revision proceedings by invoking powers under Section 20(2) of the Act and by issuing notice dt.15.02.2007 to the petitioner had called for certain information; and that since for the aforesaid two assessment years, the 2nd respondent having initiated revision proceedings, had passed an order on 17.12.2007 withholding the tax of Rs.83,63,432/- invoking powers under Section 33C of the Act.
18. By stating as above, the respondents seek for dismissal of the Writ Petition.
19. We have taken note of the respective contentions urged.
20. Insofar as refund for the assessment years 2003-04 and 2004- 05 is concerned, which the respondents by their counter-affidavit claim of being subject matter of revision, it is submitted that during the pendency of the present Writ Petition, the revision proceedings having been issued resulting in refund of Rs.30,79,071/- and Rs.65,01,891/-, respectively, in all totaling to Rs.95,80,962/-, and the said amount having been credited to the petitioner's account on 10.06.2010, this Court is of the view that the dispute with regard to refund for the 9 aforesaid two years, respectively, has been resolved and the same does not survive for consideration.
21. Insofar as the claim of the petitioner having submitted applications in Form XXIII initially on 17.09.2004 for the assessment years 1994-95, 1996-97 and 1998-99, though without enclosing refund order in Form C and the filing of applications in Form XXIII on the said date being within a period of three years from the date of being served with the assessment order, the respondents by their counter-affidavit have denied of the said applications being submitted on the said date. The respondents by their counter-affidavit had categorically stated that the Record Assistant, who is alleged to have received the Form XXIII applications on 17.09.2004, is a deaf and dumb candidate appointed under Physically Handicapped Quota under the Government Orders and on enquiry in his written statement had stated that the said acknowledgment dt.17.09.2004 was not signed by him and is a fake one.
22. The respondents by their counter-affidavit further claim that immediately after coming to know of the above, the 2nd respondent had issued letter dt.19.02.2007, through registered post, directing the petitioner to prove genuineness of the claim of filing applications in Form XXIII on 17.09.2004.
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23. However, a perusal of the counter-affidavit filed by the 1st respondent would show that the said authority is not disputing the acknowledgment issued for receipt of applications in Form XXIII on 31.10.2005 or for that matter, the acknowledgment issued for filing of Form XXIII for the year 2003-04. A perusal of the signature affixed acknowledging the receipt of Form XXIII on 31.10.2005 for the year 1994-95 along with refund order in Form C, compared with Form XXIII said to have been acknowledged on 17.09.2004 would show that both signatures are identical and affixed by the same person. The same person had also received the refund application for the year 2003-04 on 04.02.2006 and also all other communications addressed by the petitioner to 1st respondent authority during the months of February, 2006 and December, 2006.
24. Though the respondents by the counter-affidavit, had claimed of the Record Assistant, who is a deaf and dumb candidate appointed under Physically Handicapped Quota under Government Orders, having denied his signature, have not placed on record any material to substantiate the claim that the said Record Assistant in fact was not working at the said position on the date and all other acknowledgments issued immediately before and after the said date bear acknowledgment of another person for this Court to accept the 11 claim made by the respondents in the counter-affidavit. Further the 1st respondent along with the counter did not file any documents to show of the alleged enquiry or the written statement given by the Record Assistant. Thus, the claim of the 1st respondent by the counter-affidavit of acknowledgment of the applications in Form XXIII dt.17.09.2004 submitted by the petitioner being fake, does not appeal to this Court for being accepted.
25. Since, this Court has come to a conclusion that the petitioner having approached the respondents - authorities and filed applications in Form XXIII on 17.09.2004, the same are to be considered having been filed within the time prescribed under Section 33A of the Act read with Rule 44AA of the Rules, even though the petitioner did not enclose with the refund order, as issued to it in Form C.
26. As the petitioner had submitted refund applications in Form XXIII on 17.09.2004, though defective, the petitioner having cured the said defect by submitting second set of refund applications in Form XXIII on 31.10.2005 enclosing therewith Form C, the said applications ought to have been considered as having been validly filed and the same cannot be rejected by the 1st respondent as having been filed beyond the period of three years prescribed under the Act and the Rules.
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27. Further, it is to be noted that the 1st and 2nd respondents do not dispute the receipt of reminder letters dt.23.08.2006, 22.09.2006 & 01.12.2006, whereby the petitioner had claimed of it having submitted Form XXIII initially on 17.09.2004, and it is only on the petitioner approaching this Court by the present Writ Petition, the respondent claim of not having received the refund applications in Form XXIII stated to have been submitted by the petitioner on 17.09.2004.
28. It is also to be noted that the petitioner herein is a business concern and cannot be presumed to let of such refund due to it. On the other hand, it is the usual practice that in order to seek refund of excess tax from the respondents - authorities, one needs to undergo various steps to finally receive the refund, as would be evident from the facts of the present case, since for the year 2003-04 and 2004-05 though the refund was due, the same was withheld on the ground of revision proceeding having been initiated by the higher authority under Section 20(2) of the Act and invoking Section 33C of the Act such refund being withheld.
29. Further, in every case where refund is due, the respondents - authorities automatically invoke Section 33C of the Act to withhold the refund on the ground that refund is likely to adversely affect the revenue. Even in the facts of the present case, though it is claimed 13 that the 2nd respondent herein having passed an order on 17.02.2007 withholding tax of Rs.83,63,432/- due to the petitioner for the assessment years 2003-04 and 2004-05 by invoking powers under Section 33C of the Act, on passing of final orders in the said revision proceeding on 29.04.2010, the same resulted in refund of Rs.95,80,862/- which is in excess of the tax refund originally due as per the orders rather than the revision resulting in reduction of the refund for the respondents to claim that such refund would adversely affect the revenue. (see P ulp N' Pack P rivate Ltd. v/ s. Com m ercial Tax Officer 1 ).
30. In view of the above, this Court is of the view that the counter- affidavit of the respondents is liable to be rejected. Accordingly, we do so.
31. In view of the conclusions arrived at by us as above, this Court is of the view that the action of the 1st respondent in not processing the refund applications in time and the 2nd respondent on such refund applications being filed having initiated revision proceeding which only ended in higher amount being refunded to the petitioner, than originally assessed, this Court is of the view that the impugned 1 MANU/AP/0094/2009 14 proceeding of the 1st respondent in rejecting the refund applications by his order, dt.20.01.2006, for the assessment years 1994-95 and 1996-97, cannot be sustained as being valid.
32. Accordingly, the impugned proceedings dt.20.01.2006 issued by the 1st respondent is hereby set aside and the 1st respondent authority is directed to process the refund applications of the petitioner for the assessment years 1994-95 and 1996-97 and grant refund of the amount due along with interest due thereon in terms of the provisions of Section 33E of the Act within a period of two months from the date of receipt of a copy of this order.
33. Accordingly, the Writ Petition is allowed. No order as to costs.
34. Pending miscellaneous petitions, if any, shall stand closed in the light of this final order.
__________________ T. VINOD KUMAR, J Date:28.05.2025 ________________ P.SREE SUDHA, J GJ