Sriram Transport Finance Company Ltd. vs Commercial Tax Officer and Another

S.R. Nayak, J.—This writ petition is directed against the garnishee notice dated November 5, 1999 in R.C. No. PJT/02/1/428/ 99-2000 issued by the first respondent to the second respondent. The petitioner has also sought for a direction to the first respondent to implement the order of the appellate authority dated June 16, 1999 in Appeal No. P/6/99-2000, and to refund/adjust the excess tax collected from the petitioner in terms of the provisions of the Andhra Pradesh General Sales Tax Act, 1957 (for short "the Act").

The garnishee notice was issued in respect of the assessment year 1999-2000. It is stated at the Bar, at the time of hearing, that after filing of the writ petition the first respondent withdrew the garnishee notice.

In the counter, the only reason given by the first respondent to withhold the refund is that the review orders are awaited from the Commissioner of Commercial Tax.

Section 33-B of the Act deals with the refunds whereas Section 33-C of the Act deals with the power of assessing authority to withhold refund in certain cases. That section enables the assessing authority to withhold refund to an assessee only when any other proceeding under the Act is pending or where the assessing authority is of the opinion that the grant of refund is likely to adversely affect the revenue, The assessing authority may, with the previous approval of the Deputy Commissioner of Commercial Tax, withhold refund in the above noted circumstances till such time as the Deputy Commissioner may determine. In the instant case, none of the conditions or circumstances envisaged u/s 33-C of the Act, which would justify refusal, to refund, does exist. The reason stated by the first respondent that the review orders are awaited from the Commissioner of Commercial Tax is not a relevant ground or reason to withhold the refund particularly when it is not the case of the first respondent that the Commissioner of Commercial Tax has already initiated the proceeding u/s 20 of the Act.

In that view of the matter, we dispose of the writ petition with a direction to the first respondent to consider and dispose of the application of the petitioner for refund of the tax after making necessary enquiry u/s 33-BB of the Act. This direction shall be carried out within a period of two months from the date of receipt of a copy of this Order. However, it is made clear that, if the first respondent, after necessary enquiry, finds that the incidence of tax is not passed on to the purchaser, he is obliged to refund the tax without any undue delay. No costs.