IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 WP(C).No. 19257 of 2007(P) -------------------------- PETITIONER(S): --------------- P.M.AYISHABI, FORMER MANAGING PARTNER, MOOZHIKKAL TRADERS, CHELAVOOR, CALICUT. BY ADV. SRI.N.MURALEEDHARAN NAIR RESPONDENT(S): --------------- 1. COMMERCIAL TAX OFFICER, IIIRD CIRCLE, KOZHIKODE. 2. SUB TREASURY OFFICER, KOZHIKODE. GOVERNMENT PLEADER Mr.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) NO. 19257 OF 2007 ----------------------------------- Dated this the 7th day of August, 2009 J U D G M E N T The petitioner was a registered dealer at the hands of the first respondent. The business conducted by the petitioner was closed down in the year 2005-’06 and the registration certificate was surrendered. It is also pointed out that, there were no arrears of tax from the petitioner under any head. 2. In respect of the year 1999-'00, the assessment was finalized by the assessment authority on 'best judgment basis', which however was subjected to challenge by filing appeal before the Deputy Commissioner. The appellate authority allowed the appeal as per order dated 23.04.2002, whereby substantial benefits were given. But during the pendency of the above appeal, the machinery under the Revenue Recovery Act was turned against the petitioner; under which circumstance, the petitioner was constrained to approach this Court; which led to Ext.P1 judgment, whereby the petitioner was directed to remit a total sum of Rs.1,00,000/- by way of two equal instalments, which in turn was complied with by the petitioner; the first instalment having been remitted on 15.02.2002 in the State Bank WPC NO.19257/2007 2 of India. (the Treasury admittedly having been on strike) and the second instalment was remitted on 20.03.2002 as conceded by the first respondent and as borne by Ext.P3. 3. Pursuant to allowing the appeal preferred by the petitioner, the amount already satisfied by the petitioner turned to be in 'excess', whereupon the petitioner filed an application on 21.11.2003 claiming refund, which was considered by the first respondent who passed Ext.P2 order allowing refund Rs.86,700/- being the excess sales tax paid in the year 1999-’00. Pursuant to the refund order, necessary proceedings were filed before the second respondent (Sub Treasury officer) who returned the same noting several objections; which were not attributable to the petitioner. In the second circumstance, the petitioner took it to the first respondent, got them corrected and the proceedings were re-presented before the second respondent; which was again returned as defective. Pursuant to further steps taken by the petitioner, the defects were got rectified by the first respondent, who passed Ext.P4 order, which in turn was taken to the second respondent for effecting the necessary payments. But the fact remains that the second respondent chose to keep the said proceedings in cold storage, which has compelled the petitioner to seek for interference of this Court by filing the present Writ Petition. WPC NO.19257/2007 3 4. A statement has been filed by the second respondent conceding that, as per the relevant records, the petitioner has effected a deposit of Rs.50,000/- in the Treasury. But since the first instalment of Rs.50,000/- was remitted directly to the Bank and since the said payment was not rooted through the Treasury, giving credit under the relevant head of account, no records were available with the second respondent to connect the said payment. It is also conceded in the paragraph 3 of the said statement that there was no way for remitting the said amount through the Treasury under the concerned head of account during the period from 06.02.2002 to 10.03.2002, since the Government employees were on strike and that the office remained closed and further that no transactions including receipts and payments were made from the said Treasury during that period. In view of the said undisputed factual position, the reliance sought to be placed on 'Rule 208' of the Treasury Code volume I, as to the practice and procedure with regard to the refund to be effected cannot be pressed into service in the case of the petitioner. The factum of payment of a sum of Rs.50,000/- made by the petitioner having been admitted, it cannot be said that the petitioner has to suffer for the acts and misdeeds of the Government employees, if they are not in position to connect the payment with the relevant records and for any omission in making the WPC NO.19257/2007 4 relevant entries at their hands. 5. In the above facts and circumstances, there will be a direction to the respondents to see that the amount covered by Ext.P2 ordered to be refunded is made available to the petitioner with interest as payable in accordance with the prescription under Section 44 of the KGST Act read with the relevant rules. All necessary proceedings for enabling such disbursement shall be caused to be pursued by the respondents and the due amount shall be disbursed to the petitioner as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The Writ Petition is allowed as above. No cost. P.R.RAMACHANDRA MENON JUDGE dnc