Telangana High Court
Idea Cellular Limited, A Company ... vs The Commercial Tax Officer, Nampally ... on 10 September, 2024
*THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
*THE HON'BLE SRI JUSTICE NAMAVARAPU
RAJESHWAR RAO
+WRIT PETITON No.25705 of 2007
% 10-09-2024
#Idea Cellular Limited. ...Petitioner
vs.
$ The Commercial Tax Officer, Nampally Circle, Hyderabad and others.
... Respondents
!Counsel for the Petitioner: Sri Sumanth Chanda representing
Sri Lakshmi Kumaran Sridharan.
^Counsel for Respondent: Sri T. Chaitanya Kiran, Assistant Government
Pleader representing Special Government Pleader
for State Tax.
<Gist :
>Head Note :
? Cases referred
1. 2006 (3) TMI 1 - SC.
2. (2006) 3 SCC 48.
2
IN THE HIGH COURT FOR THE STATE OF TELANGANA HYDERABAD
****
WRIT PETITON No.25705 of 2007
(Per Hon'ble Sri Justice Sujoy Paul)
Between:
Idea Cellular Limited. ...Petitioner
vs.
The Commercial Tax Officer, Nampally Circle, Hyderabad and others.
... Respondents
JUDGMENT PRONOUNCED ON: 10.09.2024
THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? :
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? :
3. Whether His Lordship wishes to
see the fair copy of the Judgment? :
_______________________
JUSTICE SUJOY PAUL
___________________________________________
JUSTICE NAMAVARAPU RAJESHWAR RAO
3
THE HONOURABLE SRI JUSTICE SUJOY PAUL
AND
THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION No.25705 OF 2007
ORDER:
(per Hon'ble Sri Justice Sujoy Paul) Sri Sumanth Chanda, learned counsel representing Sri Lakshmi Kumaran Sridharan, learned counsel for the petitioner and Sri T.Chaitanya Kiran, learned counsel representing learned Special Government Pleader for State Tax for the respondents.
2. With the consent, finally heard.
3. In this petition, initially, the prayer was made for refund of the amount as well as payment of interest, but, learned counsel for the petitioner informed that during the pendency of the case, the respondents have already refunded the principal amount. Thus, the petitioner has only shown interest for grant of interest on the said principal amount.
4. Briefly stated, the relevant facts are that on 25.09.2002 (Annexure P-1), the respondents imposed a tax of Rs.4,07,30,731/- on the petitioner under the Andhra Pradesh General Sales Tax Act, 1957 (for short "the Act"). The petitioner unsuccessfully challenged the said order before this Court in W.P.No.19535 of 2002, which came to be dismissed on 14.03.2003. Aggrieved, the petitioner filed SLP.No.5447 of 2003. The Supreme Court, as an interim order, directed the petitioner to 4 deposit the said amount. Learned counsel for the petitioner submits that the said amount was deposited in installments in following manner:-
Date of payment Amount--Rs.
18.03.2003 50,00,000/-
14.05.2003 25,00,000/-
20.05.2003 25,00,000/-
29.05.2003 50,00,000/-
10.06.2003 25,00,000/-
20.06.2003 25,00,000/-
29.10.2003 50,00,000/-
28.11.2003 75,00,000/-
29.12.2003 75,00,000/-
29.01.2004 7,30,731/-
4,07,30,731/-
5. It is submitted that the said SLP was converted into Civil Appeal No.1403 of 2006. The Civil Appeal was allowed in terms of orders passed by the Supreme Court in Bharat Sanchar Nigam Limited v. Union of India 1 (see Asst. Commissioner, Trade Tax v. General Manager, BSNL 2). In obedience of the Supreme Court's order, the respondents refunded the principal amount of Rs.4,07,30,731/- to the petitioner on 24/25.04.2012.
6. Learned counsel for the petitioner by placing reliance on Section 33-B of the Act submits that in a case of this nature, where, in Appeal, the Supreme Court directed refund of the amount to the assessee, the Department was required to pay the said amount, without there being any claim submitted on behalf of the petitioner. Section 33-F of the Act is relied upon to submit that where the Department fails to grant the 1 2006 (3) TMI 1 - SC 2 (2006) 3 SCC 48 5 refund within a period of six months from the date of appellate order, the State Government is bound to pay the assessee, a simple interest @ 12% per annum on amount of refund due from the date, immediately following the expiry of period of six months aforesaid, to the date on which refund is granted.
7. The bone of contention of the learned counsel for the petitioner is that the respondents were bound to refund the amount within six months from the date of the order of the Supreme Court i.e., 02.03.2006. They refunded the amount only on 25.04.2012. The petitioner is entitled to get the amount of interest from 02.09.2006 i.e., six months from the order of the Supreme Court.
8. Learned counsel for the respondents, on the other hand, submitted that by the assessment order dated 28.03.2012, the amount was decided to be refunded and accordingly, refund was made on 24.04.2012. Thus, the claim of interest is without any basis.
9. The parties confined their arguments to the extent indicated above.
10. We have heard the parties on this limited aspect of grant of interest.
11. Before, dealing with the rival contentions, it is apposite to consider the relevant statutory provisions.
Section 33-B. Refund on appeal, etc:-
6
"Where as a result of any order passed in appeal or other proceeding under this Act, refund of any amount becomes due to the assessee or licensee, the assessing or licensing authority shall refund the amount to the assessee or licensee without his having to make any claim in that behalf, or adjust or apply, such amount as provided in Section 33."
Section 33-F. Interest on refund where no claim need be made:-
" (1) Where a refund is due to the assessee or licensee in pursuance of an order referred to in Section 33-B and the assessing or the licensing authority does not grant the refund within a period of 3[Six months] from the date of such order, the State Government shall pay to the assessee or the licensee simple interest at 4[twelve percent] per annum on the amount of refund due from the date immediately following the expiry of the period of six months aforesaid to the date on which the refund is granted."
12. A plain reading of Section 33-B of the Act makes it clear that when refund is as a result of order passed in an appeal or other proceedings, the amount must be paid without there being any claim preferred in that behalf by the assessee or licensee. In the instant case, Section 33-B of the Act is applicable with full force. Admittedly, the order dated 02.03.2006 was passed by the Supreme Court, pursuant to which, refund was necessitated. Section 33-F of the Act talks about grant of interest, where no claim needs to be made. As noticed above, in a case of this nature, where the petitioner has succeeded in appeal from the Supreme Court, no claim was required to be made. Thus, Section 33-F of the Act is squarely applicable in the instant case. A simple reading of this provision makes it clear that if, an order as per Section 33-B of the Act is passed (i.e., order of the Supreme Court in the instant case) and 3 Subs. for the words "twelve months" by Act 5 of 1974, w.e.f. 1.3.1974. 4 Subs. for the words "six-per cent" by Act 19 of 1986, w.e.f. 01.08.1986. 7 the authority does not grant refund within a period of six months from the date of appellate order, the state Government is bound to pay simple interest @ 12% per annum on the amount of refund due from the date immediately following the expiry of period of six months to the date on which refund is granted.
13. A conjoint reading of Section 33-B and 33-F of the Act shows that the argument of learned counsel for the petitioner has substantial force. There is a statutory mandate ingrained in Section 33-B and Section 33-F of the Act to pay the statutory interest @ 12% per annum, after six months from the date of passing of the judgment of the Appellate Court, till the date of actual refund i.e., 24.04.2012. Thus, the respondents are directed to calculate and pay the said interest to the petitioner. The entire exercise of calculation and payment of interest to the petitioner shall be completed within (90) days from the date of communication of this order.
14. Accordingly, the Writ Petition is allowed. No costs. Interlocutory applications, if any, pending shall also stand closed.
_______________________ JUSTICE SUJOY PAUL ___________________________________________ JUSTICE NAMAVARAPU RAJESHWAR RAO 10.09.2024 Sa/nvl