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P.V. Raghavulu and Co. Vs. Commercial Tax Officer - Court Judgment

SooperKanoon Citation

Subject

Sales Tax

Court

Andhra Pradesh High Court

Decided On

Case Number

Writ Petition No. 2186 of 1976

Judge

Reported in

[1980]45STC303(AP)

Appellant

P.V. Raghavulu and Co.

Respondent

Commercial Tax Officer

Appellant Advocate

S. Dasaratharama Reddi, Adv.

Respondent Advocate

The Government Pleader for Commercial Taxes

Disposition

Petition allowed

Excerpt:


.....and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults..........themselves demanded and collected the amount in the manner aforesaid and since the relevant period had long ago expired, it appears to us to be positively unreasonable to insist on the petitioner to pay the amount of rs. 1,18,467 once again and then immediately thereafter claim refund of the amount. as we have said, that is the true legal position. but, in view of the lapse of so much time and the fact that the departmental authorities themselves collected the amount in the manner in which it was paid in view of g.o. no. 1094, we direct that the amount of rs. 1,18,467 be adjusted by the respondent towards the demand made for the central sales tax due from the petitioner for the assessment year 1974-75. we also direct that this amount be adjusted accordingly and that they shall not collect any amount in this behalf.5. the writ petition is accordingly allowed. there will be no order as to costs. advocate's fee rs. 150,

Judgment:


A. Sambasiva Rao, C.J.

1. The relief now sought is in respect of a somewhat stale claim made by the sales tax department. As it is well-known, groundnuts are declared goods. If inter-State trade is made in respect thereof, Central sales tax also is leviable in respect of such trade. As laid down by section 15(b) of the Central Sales Tax Act and the proviso to section 6 of the A.P. General Sales Tax Act, such dealer should pay the State tax as well as the Central tax and then claim refund of the State tax. But the State Government issued on 14th July, 1964, G.O. No. 1094 exempting the declared goods from the levy of Central sales tax on condition that the dealers will not claim any refund of the State tax which they have paid. Evidently noticing the incongruity of such a notification, the State Government revoked it by a notification dated 26th November, 1970. Despite the revocation, it appears some of the sales tax authorities continued to collect only the State tax and the difference between the State tax and the Central tax whenever there is such difference, thereby dispensing with the need for refund of any amount. Despite the revocation, some of the sales tax authorities continued the same procedure and were not collecting the Central sales tax but were collecting only the State tax plus the difference between the two taxes.

2. For the year 1974-75 also, in so far as the present writ petitioner is concerned, he was a dealer in groundnuts. They were collecting the State tax and the difference between the State tax and the Central tax in monthly instalments. Towards the State tax that year, the petitioner paid Rs. 1,18,467. Sometime after the expiry of the assessment year 1974-75, a demand was made against the petitioner for payment of Rs. 1,30,180 towards the Central tax due for the assessment year 1974-75. It is undoubted that the petitioner paid the difference between the State tax and the Central tax due for that year on his dealings in inter-State trade. Now he claims that instead of his paying in the first instance a sum of Rs. 1,18,467 (sic) once again towards the Central sales tax for which demand was made and immediately thereafter claiming refund of precisely the same amount, the amount may be adjusted. He, therefore, seeks a direction that this cumbersome process may be avoided and the amount may be adjusted towards the balance of the Central tax which is due for the year 1974-75.

3. There is no doubt that as per the provisions of the Central as well as the State laws, both the taxes should be paid and then refund should be claimed of the State tax. Even though it is an empty formality, since the law requires this procedure, it will have to be followed. That is the undeniable legal position.

4. But in the peculiar circumstances of the case, we are inclined to grant the direction which the petitioner seeks. The period for which the demand was made had long ago expired. For years before that, by virtue of G. 0. No. 1094, the sales tax authorities were collecting from the petitioner only the State tax plus the difference between the State tax and the Central tax. That was continued even during the year 1974-75, despite the revocation of the above G.O. on 26th November, 1970. Since the authorities themselves demanded and collected the amount in the manner aforesaid and since the relevant period had long ago expired, it appears to us to be positively unreasonable to insist on the petitioner to pay the amount of Rs. 1,18,467 once again and then immediately thereafter claim refund of the amount. As we have said, that is the true legal position. But, in view of the lapse of so much time and the fact that the departmental authorities themselves collected the amount in the manner in which it was paid in view of G.O. No. 1094, we direct that the amount of Rs. 1,18,467 be adjusted by the respondent towards the demand made for the Central sales tax due from the petitioner for the assessment year 1974-75. We also direct that this amount be adjusted accordingly and that they shall not collect any amount in this behalf.

5. The writ petition is accordingly allowed. There will be no order as to costs. Advocate's fee Rs. 150,


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