Kerala High Court
M/S.Ideal Trading Company vs The Sales Tax Officer on 29 July, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
THURSDAY, THE 31ST DAY OF OCTOBER 2013/9TH KARTHIKA, 1935
WP(C).No. 12853 of 2010 (F)
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PETITIONER(S):
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M/S.IDEAL TRADING COMPANY,
HILL PRODUCE MERCHANT, MAIN ROAD, KALPETTA
WAYANAD DISTRICT-673 121 REPRESENTED
BY M.C.ABDURAHIMAN, MANAGING PARTNER.
BY ADVS.DR.K.B.MUHAMED KUTTY (SR.)
SRI.K.M.FIROZ
RESPONDENT(S):
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1. THE SALES TAX OFFICER,
(THE COMMERCIAL TAX OFFICER, VAT CIRCLE, KALPETTA)
OFFICE OF THE COMMERCIAL TAX OFFICER
VYTHIRI AT KALPETTA-673 121.
2. THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT
TAXES DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM.
R,R1 & 2 BY ADV.GOVERNMENT PLEADER SRI. JUSTINE JACOB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-10-
2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 12853 of 2010 (F)
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APPENDIX
PETITIONERS EXHIBITS
EXT.P1 COPY OF THE REVISED ASSESSMENT ORDER FOR THE YEAR 1998-99
DATED 29-7-2002
EXT.P2 COPY OF the JUDGMENT IN W.P.C NO.25668/2008 DATED 8-7-2009
EXT.P3 COPY OF THE REFUND ORDER DATED 26-9-2009 ISSUED BY THE FIRST
RESPONDENT TO THE PETITIONER
EXT.P4 COPIES OF THE REFUND PAYMENT ORDERS ALL DATED 5-10-2009
EXT.P5 COPY OF the PETITION DATED 10-1-2010 SUBMITTED BY THE
PETITIONER BEFORE THE FIRST RESPONDENT
EXT.P6 COPY OF THE LETTER DATED 16-1-2010 ISSUED BY THE ASSESSING
AUTHORITY
RESPONDENTS EXHIBITS
EXT.R1(a) COPY OF THE JUDGEMENT DATED 5-10-2000 IN O.P 9492/2000
TRUE COPY
P.A TO JUDGE
SMM
V.CHITAMBARESH,J.
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W.P.(C) No. 12853 of 2010
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Dated this the 31st day of October, 2013
J U D G M E N T
Ext.P1 order passed by the first respondent by giving effect to the order passed in appeal by the Appellate Assistant Commissioner specifically reflects the excess payment of 10,72,000/-(Rupees ten lakhs seventy two thousand only) as sales tax. But then the amount was not refunded by virtue of S.R.O No.1071/2001 dated 3-12-2001 which however was held not applicable to the petitioner by Ext.P2 judgment. It necessarily follows that the sum of Rs.10,72,000/-(Rupees ten lakhs seventy two thousand only) is liable to be refunded to the petitioner with the statutory interest under Section 44 of the Kerala General Sales Tax Act, 1963.
2. It is conceded that only the sum of Rs.10,72,000/- (Rupees ten lakhs seventy two thousand only) has been refunded to the petitioner and not the statutory interest thereon at the rate of 10% per annum. The liability inheres on the respondents after the expiry of 90 days from the date of Ext.P1 order under Section 44(4) of the Kerala General Sales Tax Act. The W.P.(C) No. 12853 of 2010 2 respondents cannot wriggle out of the liability when the statute itself gives a right to the petitioner to claim interest on the refund of the excess tax paid.
3. There is a faint plea for the respondents that interest has not been allowed in Ext.P2 judgment and that the present writ petition is barred by resjudicata. Ext.P2 judgment does not anywhere show that the parties have joined issues on the entitlement for interest. There should be an issue as well as an adjudication of the question of interest for the finding to operate as resjudicata in the present writ petition.
4. Resultantly, the respondents are directed to pay interest on the sum of Rs.10,72,000/- (Rupees ten lakhs seventy two thousand only)to the petitioner with effect from 1-11-2002 after the expiry of 90 days from Ext.P1 order. The amount shall be paid within a period of three months failing which the petitioner can resort to proceedings under the contempt of court proceedings as well.
The writ petition is allowed. No costs.
V.CHITAMBARESH JUDGE smm W.P.(C) No. 12853 of 2010 3