THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR +WRIT PETITION NOs.30305, 30361, 30588 AND 30726 OF 2010 % 27.10.2011 1. W.P.No.30305 of 2010 #M/s. Orient Cements rep.by its Sr. Manager (Accounts) Mr. P.K.Bhomia.. ...PETITIONER VERSUS $1. The Commercial Tax Officer, Mancherial Circle, Adilabad District. And two others. ...RESPONDENTS < GIST: > HEAD NOTE: !Counsel for Petitioner: M/s. Anjali Agarwal ^Counsel for Respondents: Special Standing Counsel for Commercial Taxes. ? Cases referred 1. Vol.33 APSTJ 187 2. AIR 1999 SC 1305 3. 2000 (2) ALD 560 4. AIR 1990 SC 10 And three other Writ Petitions. THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NOs.30305, 30361, 30588 AND 30726 OF 2010 COMMON ORDER: (Per the Hon’ble Sri Justice V.V.S.Rao) These Writ Petitions are filed by M/s. Orient Cements seeking a Writ of Mandamus declaring the action of the first respondent in not refunding the amounts deposited by the petitioner towards disputed tax during the pendency of the appeals before the second respondent for the assessment years 1983-84, 1984-85 and 1990-91. The background of each of the cases is similar. For the sake of convenience, we may pick up the fact of the matter from W.P.No.30588 of f2010. The petitioner is a registered dealer under the Andhra Pradesh General Sales Tax Act, 1957 and the Central Sales Tax Act, 1956, on the rolls of the first respondent namely, the Commercial Tax Officer, Mancherial, Adilabad District. For the assessment year 1983-84, the petitioner’s assessment was finalised on 15.10.1987. However, having regard to the verification report of the Assistant Commissioner (Enforcement), the first respondent revised the assessment order on 09.03.1988 levying tax of Rs.53,203/- at 4% on the turnover of Rs.13,30,082/-, which relates to freight charges collected from the dealer against ‘G’ forms. The petitioner paid the said amount. The petitioner went in appeal before the second respondent. The appellate authority allowed the appeal and remanded the matter on 17.10.1994. The petitioner contends that pursuant to the remand order of the appellate authority, the first respondent was required to pass the consequential order under Section 24-A of the Act within three years but he did not do so. The petitioner alleges that it made repeated representations seeking refund of the tax amount paid pursuant to original assessment along with interest but in vain. Therefore, they filed the Writ Petition seeking a Mandamus for refund of Rs.65,839/-, which includes the interest. W.P.No.30726 of 2010 is for a Writ of Mandamus directing refund of Rs.7,33,625/-, which the petitioner paid towards CST for the assessment year 1984-85. The claim is based on the fact that the appellate authority remanded the matter to the assessment officer, who failed to pass orders within the permissible time. W.P.Nos.30305 and 30361 of 2010 relate to the assessment of APGST and CST for the assessment year 1990-91 respectively and they also relate to the amounts paid towards tax pending the appeals, which were remanded by the appellate authority but met with the same fate. In all the matters, the first respondent has filed counter affidavits. In the one filed in W.P.No.30588 of 2010, the fact of the petitioner paying the disputed tax is not denied. It is, however stated that the Joint Commissioner (Legal) revised the assessment order for the year 1983-84 under Section 20(2) of the Act by proceedings dated 16.03.1991 on the issue relating to tax on packing material and pursuant thereto, the first respondent raised a demand of Rs.3,03,305/-. Although the petitioner is entitled to refund of Rs.52,503/-, the first respondent stated that the demand raised towards tax against the petitioner is Rs.38,12,044/- for the years 1984-85 to 1992-93, both under the APGST and CST Acts and that the amount refundable was adjusted. In all the counter affidavits the same plea is taken. The petitioner has not filed any reply affidavit rebutting the counter averments. In that view of the matter, the factual position may be taken as not disputed. The petitioner’s assessment for the years 1983-84, 1984-85 and 1990-91 under APGST Act respectively and the assessment for the year 1990-91 both under the APGST and the CST Act were contested; appeals were filed; the appellate authority allowed the appeals and remanded the matters to the assessment officer. There is no dispute that the first respondent did not pass orders in accordance with Section 24-A of the Act within three years thereafter. Therefore, the petitioner’s claim for refund is not unjustified, but still, the fact remains that there are substantial arrears of tax due from the petitioner. Relying on Section 33-B of the APGST Act, the counsel for the petitioner would vehemently contend that the first respondent failed to discharge the statutory obligation to refund the amount due to the assessee and therefore, in addition to the refund amount, the petitioner is entitled for interest thereon. She would place reliance on the decision in Richardson Cruddas (1972) Ltd., v. C.T.O., Gajuwaka, Visakhapatnam (APHC)[1]. Per contra, the Special Counsel for Commercial Taxes would submit that the petitioner made a representation for the first time only in the year 2010 and therefore, it should be denied relief. He also submits that though the petitioner is entitled for adjustment of the amounts due towards refund, still huge arrears are due from the petitioner. Richardson Cruddas (1972) Ltd., was a case, which construed Section 33-B read with Section 33-F of the APGST Act. In the background of the case, the question was whether the assessee was entitled to claim interest at 12% per annum when the amount of tax was not refunded by the concerned authority. Interpreting both the provisions, it was held that if an amount is not refunded within a period of six months as contemplated under Section 33-F, the assessee would be entitled to interest thereon at 12% per annum. The question in this case, however, is whether the petitioner can maintain these Writ Petitions for refund and interest after a lapse of more than 15 to 20 years. We are afraid the petitioner would not be entitled for the discretionary relief of Mandamus in this case. Section 33-B no doubt casts an obligation on the assessing authority to refund the amount which becomes due to the assessee. The crucial words therein are “any amount becomes due to the assessee”. When the assessee, in spite of default on the part of the assessing officer with regard to Section 24-A of the APGST Act, keeps quiet and does not make any claim either before the assessing officer or this Court, can it be said that the amount becomes due? The phrase, “the amount due” in Section 71 of the Kerala Revenue Recovery Act, 1968 was interpreted by the Supreme Court in State of Kerala v V.R.Kalliyanikutty[2]. Section 71 of the said Act enabled the public authorities to recover “amounts due” as land revenue. But, the Supreme Court observed that the amount “due” normally refers to the amounts, which a creditor has a right to recover. When such amount or debt is time barred, the same cannot be described as the amount due which a creditor can recover. In view of this, while holding that under Section 71 of the Kerala Act, the claims, which are time barred on the date of initiating recovery proceedings, are not “amounts due”, the Supreme Court held as follows. There is no question, however, in the present case of any payment voluntarily made by a debtor being adjusted by his creditor against a time-barred debt. The provisions in the present case are statutory provisions for coercive recovery of "amounts due". Although the necessity of filing a suit by a creditor is avoided, the extent of the claim which is legally recoverable is not thereby enlarged. Under Section 70(2) of the Kerala Revenue Recovery Act the right of a debtor to file a suit for refund is expressly preserved. Instead of the bank or the financial institution filing a suit which is defended by the debtor, the creditor first recovers and then defends his recovery in a suit filed by the debtor. The rights of the parties are not thereby enlarged. The process of recovery is different. An Act must expressly provide for such enlargement of claims which are legally recoverable, before it can be interpreted as extending to the recovery of those amounts which have ceased to be legally recoverable on the date when recovery proceedings are undertaken. Under the Kerala Revenue Recovery Act such process of recovery would start with a written requisition issued in the prescribed form by the creditor to the collector of the District as prescribed under Section 69(2) of the said Act. Therefore, all claims which are legally recoverable and are not time-barred on that date can be recovered under the Kerala Revenue Recovery Act. In N.A.Radha v State of Andhra Pradesh[3], the action of the A.P. State Financial Corporation in enforcing its dues by issuing notices under Section 52A of A.P. Revenue Recovery Act was challenged. This Court, following Kalliyanikutty (supra), held as under. The only question that survives and has been urged at the hearing of this writ petition is that the demand by the Corporation of the amounts due from the petitioners is barred by limitation and as such unenforceable per se or under the provisions of the Act. In view of the decision of the Supreme Court in State of Kerala v Kaliyani Kutty, AIR 1999 SC 1305, proceedings under the Act cannot lie for recovery of amounts that are barred by limitation. The question that arises is whether the claim of the respondent – Corporation is barred by limitation and whether this question would be adjudicated in these proceedings. In this case, admittedly, the petitioner did not approach the assessing officer or this Court within a reasonable time. There is a long delay in filing these Writ Petitions. Except making an allegation in the affidavit accompanying the Writ Petition that the petitioner made repeated representations, they are not placed before this Court. Even otherwise, the petitioner’s cause of action must be held to have arisen immediately after six months after expiry of the period from the date of making such representation in case such representation was made (S.S.Rathore v. State of Madhya Pradesh [4]). These Writ Petitions, in our considered opinion, are therefore barred by delay and latches. Further, a case of refund of tax involves larger public interest and if larger public interest is likely to be subverted – it is well settled; the Court can always decline to exercise discretion and refuse to issue a Writ as prayed for. The Writ Petitions, for the above reasons, fail and are accordingly dismissed. There shall be no order as to costs. _______________ (V.V.S.RAO, J) _____________________ (SANJAY KUMAR, J) 27th October 2011 Note: LR Copy be marked Issue CC by one week B/O RRB [1] Vol.33 APSTJ 187 [2] AIR 1999 SC 1305 [3] 2000 (2) ALD 560 [4] AIR 1990 SC 10