IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 WP(C).No. 866 of 2007(C) ------------------------------------ PETITIONER(S): ---------------------- M/S.AVEMARIA STORES & AGENCIES, LALOOR, THRISSUR, REPRESENTED BY ITS MANAGING PARTNER, K.J.PETER. BY ADVS. SMT.S.K.DEVI SRI.SANTHOSH P.ABRAHAM RESPONDENT(S): -------------------------- 1. THE SALES TAX OFFICER, DEPT. OF COMMERCIAL TAXES, II CIRCLE, THRISSUR. 2. STATE OF KERALA, REPRESENTED BY THE FINANCE SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI.K.P.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.866/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ASSESSMENT ORDER NO.25122489/98-99 DTD. 20/12/03. P2:- COPY OF THE ASSESSMENT U/S 17(4) NO.25122489/99-2000 DTD. 8.3.01. P3:- COPY OF THE ASSESSMENT U/S.17(4) NO.251222489/2000-01 DTD. 11.11.01. P4:- COPY OF THE ASSESSMENT U/S. 17(4) NO.25122489/01-02 DT. 18.7.02. P5:- COPY OF THE REPRESENTATION DTD. 16.3.2005. P6:- COPY OF THE REMINDER DTD. 6.3.06. TRUE COPY P.A. TO JUDGE tss P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No. 866 OF 2007 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 28th day of October, 2010 JUDGMENT The petitioner has approached this Court seeking for a direction to be issued to the first respondent to effect refund as per Ext. P1 with interest as provided under Section 44 (4) of the KGST Act. 2. The sequence of events as narrated in the Writ Petition shows that, the petitioner is a dealer under the KGST Act, who stopped his business w.e.f. 31.03.2002. Prior to the stoppage of the business as above, the petitioner had challenged the assessment in respect of the assessment year 1998-'99 and Ext. P1 is the revised assessment order, whereby the actual liability of the petitioner has been mentioned given with reference to the amount already satisfied, thus showing a sum of `34,149/- as the excess payment effected by the petitioner. It is the case of the petitioner that, the assessment in respect of the subsequent years also stand finalized as borne by Exts. P2, P3 and P4 which do not reflect any outstanding liability. It was in the said circumstances that the refund of the excess amount was sought for, which however did not turn to be fruitful. The petitioner preferred Ext. P15 representation seeking for refund, on W.P. (C) No. 866 of 2007 2 16.02.2005, which was followed by Ext. P6 and they were not considered. As there was no other alternative, the petitioner is stated as constrained to approach this Court by filing the present Writ Petition. 3. The Writ Petition was admitted by this Court on 09.01.2007, simultaneously requiring the learned Government Pleader to get instructions. When the matter came up for further consideration on 26.11.2008, a further period of two weeks was granted for filing the counter affidavit. In spite of the lapse of more than three years, no counter affidavit has been filed from the part of the respondents, so as to rebut the contentions raised by the petitioner in the Writ Petition. This being the position, it is reasonably presumed that the averments and allegations raised by the petitioner in the Writ Petition are correct. 4. The learned Government pleader submits, based on the instructions stated as received, that, the reason for non disbursement of the amount was only because of non-surrender of some forms and records including the Registration Certificate. 5. However, there is no case for the respondents that any such communication was issued to the petitioner at any point of time. Further, , in view of the undisputed fact that the petitioner stopped his business w.e.f. 31.03.2002; that there is an excess payment of Rs.34,149/-, as clearly shown in Ext. P1 assessment order pertaining to the assessment year W.P. (C) No. 866 of 2007 3 1998-'99; in view of the factum of non existence of any liability in respect of the subsequent years as borne by Exts.P2, P3 and P4 and above all since the forms which were allegedly not surrendered by petitioner cannot be of any use as on date, the contention now raised by the respondents does not have any pith of substance. 6. The submission made from the part of the respondents is vehementally opposed from the part of the of the petitioner. The petitioner submits that, all the relevant forms and the registration certificate were surrendered by the petitioner as early as on 17.03.2005 along with requisite memo dated 16.03.20005 and the same was accepted by the departmental authorities against proper receipt dated 17.03.2005. Copy of the relevant receipt is produced for perusal of this Court. 7. In the above circumstances, this Court finds it fit and proper to direct the first respondent to effect refund of the excess amount of Rs.34,149/-with interest as contemplated under Section 44 (4) of the KGST Act, 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. No cost. P. R. RAMACHANDRA MENON, JUDGE kmd