THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO W.P.Nos.293 of 2011 and 1419 of 2011 M/s. new Bharat Enterprises, Hyderabad v. The CTO , Hyderabad. THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO W.P.Nos.293 of 2011 and 1419 of 2011 Order : ( Per Sri GR, J ) As the issue is substantively similar and the grievance the same in both the writ petitions, the writ petitions are considered and disposed of by this common order. Brief and relevant facts may be noticed. W.P.No.293 of 2011: Order of assessment for the year 2003-04 was passed on 31-4-2004 by the respondent and aggrieved thereby the petitioner preferred an appeal which was allowed by the jurisdictional Appellate Deputy Commissioner by order dated 19.9.2005 which was communicated to the petitioner on 21.9.2005. Under 3rd proviso to Section 21(2) of the Andhra Pradesh General Sales Tax Act 1957, ( for short “the Act 1957”), the assessing authority is obligated to refund the amount paid towards predeposit while preferring appeal to the Appellate Deputy Commissioner, at the rate of 18%, after period of 60 days from the date of receipt of the appellate order. The petitioner therefore claims in this writ petition that with effect from 20.11.2005, i.e. 60 days after the date of receipt of the order dated 19.9.2005 passed by the appellate Deputy Commissioner, the petitioner is entitled to interest on the amount of predeposit by him and alleges that no order as to refund of the predeposit amount along with applicable interest has been passed by the respondent. The writ petition has been filed on 31st December 2010 and no counter has been filed for 1 ½ years by the respondent. On the principle of non-traverse the claim and contentions of the petitioner must be considered as undisputed. Sri P.Balaji Varma, learned Standing Counsel for the Commercial Taxes has also conceded the legal position that the petitioner would be entitled to the refund of the predeposit amount with interest at 18% after 60 days from the date of receipt of the order of the appellate Deputy Commissioner i.e. with effect from 20.11.2005 and has no justification to offer ( in any event in the absence of any counter affidavit) for withholding of the refund with the statutorily enjoined interest. W.P.No.1419 of 2011. For the assessment year 2000-01, the order of assessment was passed on 29.3.2003. Aggrieved thereby, the petitioner preferred an appeal which was allowed by the jurisdictional Appellate Deputy Commissioner on 28.11.2003. The copy of the order of the appellate Deputy Commissioner was received by the petitioner on 2.1.2004. As there was no predeposit of the disputed tax while preferring the appeal no refund of the amount predeposited is claimed in this writ petition. The petitioner however claims refund of the excess tax paid consequent on the order of assessment which is liable to be refunded consequent on the order of the Appellate Deputy Commissioner dated 28.11.2003, with interest with effect from 2.7.2004, consequent on the order of the appellate Deputy Commissioner dated 28.11.2003, with effect from 29.5.2004, under section 33 F read with Section 33 B of the Act, 1957. Section 33 B of the Act 1957 enjoins that as a in result of any appeal under the Act, 1957 the refund of any amount becomes due to the assessee or licensee, the assessing or licencing authority shall refund the amount without having to make any claim in that behalf. Section 33 D to the extent relevant enacts that in a claim for refund under Section 33, it shall not be open to the assessee or the licensee to question the correctness of any assessment or other matter decided, which has become final conclusive, or seek for a review in respect thereof, and the assessee or the licensee shall not be entitled to any relief on such claim except the refund of tax or licence fees wrongly paid or paid in excess. Section 33 F of the Act 1957 obligates the State Government to pay to the assessee or licensee interest at 12% per annum on the amount of refund due from the date immediately following the expiry of the period of six months from the date of order referred to under Section 33-B of the Act 1957. Sri Balaji Verma, does not contest the entitlement of the petitioner to refund of the amount of tax paid by the petitioner consequent on the appellate order dated 28.11.2003 nor the entitlement of the petitioner to interest with effect from 29.5.2004 having regard to the provisions of Section 33 F of the Act 1957. In the absence of any counter nor any principle urged on behalf of the respondent-Revenue contesting the entitlement of the petitioner to refund of the amount of predeposit or the refundable tax, as the case may be in two writ petitions; or as to the rate of interest, or the period for which interest is liable to be paid, the writ petitions are required to be and are accordingly allowed. Having regard to the fact that no refund has been ordered by the respective respondents, since September 2005 in the 1st writ petition and from November 2003 in the 2nd writ petition, even till date, we consider it appropriate to direct the respective respondents to pass orders for refund with utmost expedition, and in any event within a period of 7 days from the date of receipt of a copy of this order and communicate the same to the petitioner. Consequent payment of refund shall also follow within a period not exceeding 15 days from communication of the order of refund. In the facts and circumstances of the case we also consider it proper to impose costs of Rs.2500/- in each writ petition to be paid by the respondents to the petitioner within the aforesaid period. It is open to the State to identify the officer or officers responsible for abdication of the statutory responsibility ( to order refund) for appropriate administrative corrective action. Accordingly, the writ petitions are allowed with costs. ______________​______ GODA RAGHURAM, J ________________________ M.S. RAMACHANDRA RAO, J Date : 13-9-12 kk THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO W.P.Nos.293 of 2011 and 1419 of 2011 Dated 13-9-2012