Fytochem Formulations Limited vs Commercial Tax Officer

Ashutosh Mohunta, J.—The petitioner has filed this writ petition to set aside the appeal rejection order dated 16.11.2013 passed by the 2nd respondent for the assessment year 2004-2005, on the ground of non payment of 12.5% of the disputed tax, and to direct the 1st respondent to pass revised proceedings adjusting the refund amount of Rs. 2,37,248/- for the assessment year 2002-2003 under the Central Sales Tax Act towards the payment of 12.5% of the disputed tax for the year 2004-2005. The petitioner is a manufacturer of Pharmaceutical formulations. It was assessed by the Commercial Tax Officer, Benz circle, Vijayawada, for the year 2004-2005 under the Central Sales Tax Act. Vide order dated 27.01.2011, it was found that the petitioner has paid Rs. 2,37,248/- as excess tax for the year 2002-2003.

The petitioner challenged the order passed by the 1st respondent by filing an appeal, which has been dismissed on the ground that he has not paid 12.5% of tax at the time of filing the appeal. It was the case of the petitioner that as he has to get refund of Rs. 2,37,248/-, therefore, this amount can be adjusted towards payment of 12.5% of the disputed tax.

Learned counsel for the petitioner further submits that before filing the appeal, the petitioner also submitted a representation on 23.07.2013 before the Commercial Tax Officer, Benz Circle, Vijayawada, to consider his request for adjustment of the excess payment made by him, towards the pre-deposit of 12.5% of the disputed tax. But the same has not been considered till now.

Learned counsel for the respondents however submits that the adjustment in this case cannot take place. However, the Commercial Tax Officer, can issue endorsement declaring the surplus available if any. Learned counsel further admits that the representation filed by the petitioner before the 1st respondent has not been considered as yet.

After hearing the counsel for the parties, we are of the considered opinion that it was incumbent for the 1st respondent to decide the representation submitted by the petitioner and in case, it is found that the petitioner is entitled to the excess amount, then a certificate/endorsement be issued to the petitioner, so that the amount can be adjusted towards pre-deposit of 12.5% at the time of admission of the appeal.

In view of the above, we set aside the order dated 16.11.2013 passed by the 2nd respondent and direct the Is'' respondent to decide the representation dated 23.07.2013 submitted by the petitioner as expeditiously as possible preferably within 30 days from the date of receipt of a copy of this order. In case the representation of the petitioner is accepted, the 2nd respondent is directed to admit the appeal. Till the disposal of the representation dated 23.07.2013, the respondents shall not take any coercive steps for recovery of the disputed tax amount.

With the above direction, we dispose of this writ petition. Miscellaneous Petitions pending, if any, shall stand disposed of. There shall be no order as to costs.