1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.718 of 2002 Date of decision 7.4.2009 M/s Ganesh Boring Co & anr ….Petitioners. Vs. State of HP & ors Respondents Coram: The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 No. For the Petitioners: Mr.M.M. Khanna, Sr, Advocate, with Mr. Goverdhan Sharma, Advocate. For the respondents Mr. P.K. Sharma, Addl. AG with Mr.P.M. Negi Dy. A.G Per Surjit Singh, J (oral) Writ petitioners in this case have challenged the vires of Section 18(3) of the Himachal Pradesh General Sales Tax Act, 1968, besides seeking the issue of writ of mandamus to the respondents to refund the excess payment of sales tax, together with interest at the prescribed rate, from the date when the tax was deposited with the respondents, after deduction at source. 2. Relevant facts are as follows. During the year 1995, petitioners were awarded some work by the I & PH department of State of Himachal Pradesh. The amount of work was 1,14,30,864/-. 1 Whether reporter of local papers is allowed to see the judgment? 2 After deducting sales tax at the rate of 2%, the department made payment to the petitioners, on completion of the work. 3. Excise and Taxation Officer, Paonta Sahib, with whom the tax was deposited after deduction at source, passed assessment order on 2nd March, 2001 and held that the petitioners were entitled to the refund of a sum of Rs. 83,246/-. On the very day of the passing of the order, petitioners applied for the refund of the aforesaid amount of money. At the same time, he filed an appeal against the aforesaid order of assessment, because he felt that a larger amount of money was refundable to him than worked out by the Assessing Officer. The appellate authority passed an order in the month of April, 2001, remanding case to the Assessing authority, with the direction to make the assessment de novo. 4. Assessing authority then passed an order on 20th March, 2002, holding that the petitioners had made excess payment to the tune of Rs. 1,69,793/-. It also ordered that the dealer may apply for refund of the aforesaid amount separately. Petitioners applied for refund of the aforesaid amount of Rs. 1,69,793/- on the very day of the passing of the order, but noting was paid to them. Petitioners then filed the present writ petition. 5. According to the petitioners, they are entitled to the refund of the aforesaid amount of money together with interest @1% per month for the first month and @ 1 ½% for the remaining period from the date the tax was deposited with the respondents by the department after making deduction at source. It is alleged that when the dealer according to Section 12-A is liable to pay the amount of tax in respect of which default is made with interest at the aforesaid rates from the date(s) of default, there should be no reason for the Excise & 3 Taxation department not refunding the excess amount with interest at the aforesaid rates from the date of the payment/deposit of the tax and that the provision of section 18(3) which says that the interest at the aforesaid rates is payable only after expiry of 90 days period from the date of the order for refund, is, therefore, ultra vires. 6. Respondents, in their reply, have stated that for processing the case for refund after passing the assessment order dated 20th March, 2002, petitioners were required to submit certain form (ST-form) under rule 49 and they having not submitted such a form, the excess amount of tax has not been refunded to them. 7. We have heard the learned counsel for the parties and perused the record. Learned counsel for the petitioner does not press the prayer for declaring the provision of section 18(3) of Himachal Pradesh General Sales Tax Act ultra vires, but says that a direction is required to be issued to the respondents to refund the aforesaid amount of Rs. 1,69,793/- together with interest in terms of provision of section 18(3). 8. Section 18(3) provides that if the amount of refund worked out by the Assessing authority is not paid to the dealer within 90 days, interest shall be paid @ 1% per month for the first month and @ 1 ½ % per month for the remaining period till the date of refund of excess amount paid. Plea taken by the respondents that the petitioners were supposed to submit form ST-X as per requirement of Rule 49, is without merit. Rule 49 nowhere says that any further information is required to be submitted on any form, leave alone ST- X, after the assessment order is finally passed and some amount is found to be refundable to the dealer. So, the respondent’s contention is rejected. 4 9. In view of the above stated position, we partly allow this writ petition and direct the respondents to refund the amount of Rs. 1,69,793/- to the petitioners with interest @ 1% per month from 19.6.2002 to 18.7.2002 and @ 1 ½% per month from 19.7.2002 onwards till the payment of the aforesaid amount of refund. Writ petition stands disposed of accordingly. ( R.B. Misra ),J. (Surjit Singh ),J. 7th April, 2009(sl)