TMI Blog2021 (7) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner, as no such communication withholding the refund has been received by the petitioner either before filing of the Writ Petition or during the pendency of the present proceeding - this Court cannot accept the statement made on behalf of the respondents that the 3rd respondent, having exercised powers conferred under Section 40(2) of the Act, has decided to withhold the refund due to the petitioner. The respondents are hereby directed to refund the amount - Petition allowed. - WRIT PETITION No.10459 of 2021 - - - Dated:- 7-7-2021 - HON BLE SRI JUSTICE M.S. RAMACHANDRA RAO AND HON BLE SRI JUSTICE T. VINOD KUMAR Petitioner Advocate : Karthik Ramana Puttamreddy Respondent Advocate : GP For Commercial Tax TG O R D E R:(per Hon ble Sri Justice T. Vinod Kumar) This is yet another Writ Petition, whereby the petitioner is driven to invoke the jurisdiction of this Court under Article 226 of the Constitution of India, for grant of refund of the tax paid, from the respondents, pursuant to the orders of the Telangana Value Added Tax Appellate Tribunal, Hyderabad (for short, the Tribunal ). 2. The petitioner contends that the 1st respondent had completed the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er month for the period of delay as per proviso to Section 33(2) and Section 39(2) of the Act; and that for the purpose of granting refund pursuant to the order of the Tribunal, no application is required to be made by the petitioner as a duty is cast on the respondents to grant refund. 7. It is the contention of the petitioner that the petitioner became entitled for refund, consequent upon the Tribunal allowing the appeals and the order of the 2nd respondent being setting aside; as no refund had been sanctioned, the petitioner filed a representation on 09.08.2019, requesting the 1st respondent to pass a consequential order for each of the tax periods on the basis of the order of the Tribunal, determine the excess amount due to the petitioner; and to refund the same immediately. 8. It is also contended that upon the petitioner filing the above representation, the 1st respondent issued Form 351, notifying the refund and the petitioner submitted its confirmation thereto by furnishing the desired information. The petitioner again addressed another letter dt.13.08.2020 requesting for expediting the process of refund and also furnished indemnity bond on 03.09.2020 as required by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt has witnessed that wherever as a result of the order of the Tribunal, a refund arises, the dealer/assessee is required to approach this Court by invoking the jurisdiction under Article 226 of the Constitution of India, notwithstanding the provisions of the Act stipulating that the difference of tax/ penalty/ interest paid as a pre-condition for filing appeal should be refunded within a period of 90 days. The Act also provides that, in the event the amount due the dealer/assessee, is not refunded within the time prescribed, the same shall carry interest at the rate of 1% per month, beyond the period of 90 days till the date of refund. 14. We have not come across a case where the respondents have granted refund, be it of substantial amount or otherwise, along with interest under Section 39(2) of the Act, on their own, even when the refund is sanctioned. Wherever, a dealer/assessee seeks refund or makes a claim for interest for the delayed refund, it invariably is required to invoke the jurisdiction of the Court under Article 226 of the Constitution of India. The attitude of the respondents appears to be that the grant of refund is a favour to the dealer/assessee and refund is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) had considered, this issue in detail, and held that mere pendency of tax revision case before this Court cannot be the basis for withholding refund due to the dealer/assessee. 20. This Court in Reddy Laboratories Limited v. Assistant Commissioner (CT) LTU (2011) 37 VST 76 (AP) (DB), held that Is it possible to argue that any refund would adversely affect the Revenue during the pendency of appeal or further proceeding? If the intention of the Legislature was to bar refund under Sections 38 and 39 of VAT Act, the discretion vested in the prescribed authority to withhold refund would not have found place in the statute. The right to seek refund and the right to claim interest, in the event refund is not made within the prescribed period of 90 days, would indicate that mere pendency of an appeal or further proceeding is no ground to withhold refund. 21. Further, in a recent judgment rendered by this Bench on 07.06.2021 in KMC Constructions Ltd., v. Assistant Commissioner (CT) Hyderabad and Others WP No. 20554 of 2020, held that - Merely because the decision rendered by the Tribunal is not acceptable to the respondents and they having preferred a Revi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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