JUDGMENT
R.S. Mohite, J.
1. Rule, By consent of the parties rule made returnable forthwith and parties are heard.
2. This writ petition filed by M/s. Gharda Chemicals Ltd. (hereinafter referred to as the “Petitioner”.) seeks a writ of mandamus or a direction directing the Commissioner of Sales Tax (hereinafter referred to as the “Respondent”) to grant interest to the petitioner under Section 44A of the Bombay Sales Tax Act, 1959.
3. The brief relevant facts of the case are as follows.
a) By an assessment order dated 31.3.1997 the Asset. Commissioner of Sales Tax (Adam) (M-85), Arranger granted refund of RPS. 79,00,000/- to the petitioner in respect of the period 1.4.1993 to 31.3.1994 This order was set aside by a sue moot revision order by the Revisions authority by his order dated 16.1.1998. The petitioner being aggrieved by the order in revision, preferred appeal being Appeal No. 18/1998 before the Maharashtra Sales Tax Tribunal and by his judgment and order dated 13.6.2003, the Tribunal allowed the petitioner’s appeal and confirmed the assessment order. The Tribunal also directed the Assessment officer to grant refund to the petitioner under Section 43A of the Sales Tax Act. Before us it is conceded on behalf of the petitioner that the grant of interest to the petitioner under Section 43A of the Bobby Sales Tax Act was incorrect as the said provision was brought into force by way of a subsequent amendment in the year 1995 and would not be applicable in respect of the assessment period.
b) Thereafter, on 1.7.2003 the petitioner filed an application for refund and the said refund of RPS. 79,00,000/- was received on 26.2.2004.
c) Thereafter, on 23.3.2004 the petitioner filed an application for grant of interest on delayed refund under Section 44A of the Bombay Sales Tax Act. By his order dated 30.9.2006, the Additional Commissioner of Sales Tax, Pune rejected the petitioner’s application for grant of interest on delayed refund.
d) On 30.10.2006 the petitioner then made representation to the Commissioner of Sales Act and challenged the order passed by the Additional Commissioner of Sales Tax refusing to grant interest for the delayed period. This application was rejected by the Commissioner of Sales Tax on 6.7.2007 and in these circumstances, the petitioner filed the present petition for the reliefs mentioned herein above.
4. We have perused the record. Before we deal with the contentions on merits, we would like to first dispose of the preliminary objection which was raised on behalf of the respondent to the effect that the petitioner’s petition be dismissed as the petitioner had an equally efficacious remedy by way of an appeal under Section 56 of the Bombay Sales Tax Act. It was contended that the proper remedy for the petitioner was to seek the relief sought in this petition before the Commissioner (Appeals). Reliance was placed upon Section 56 of the Bombay Sales Tax Act and it was contended that this section enumerates all the orders which are non appealable or non revisable and the impugned order passed by the Commissioner under Section 44A was not an order in respect of which an appeal was barred under Section 56 of the Bombay Sales Tax Act. The Advocate for the petitioner has placed reliance on the judgment in the case of Tin Plate Co. of India Ltd. v. State of Bihar and Ors. reported in 112 Sales Tax Cases Page 543 in which the Apex Court observed as under.
It is no doubt true that when an alternative and equally efficacious remedy is open to a person, he should ordinarily be required to pursue that remedy and not to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India and where such remedy is available it would be a sound exercise of discretion to refuse to entertain the writ petition.
In this regard, on behalf of the petitioner it is contended that the Maharashtra Sales Tax Tribunal was not entertaining an appeal against an order passed under Section 44A of the Act. Reliance was placed on the judgment of the Tribunal in Second Appeal No. 557 of 1995 between Kamdhenu Pesticides v. The State of Maharashtra dated 15.12.2001. On perusal of the judgment it can be seen that the Tribunal has taken a view that in view of Rule 52A of the Bombay Sales Tax Rules, 1959 appeal was not maintainable before the Tribunal. Reliance has been placed upon an earlier judgment of the Tribunal in the case of Elcopak v. The State of Maharashtra (Misc. Application Nos. 9 to 12 of 1993) decided on 30.9.1994). It is clear that the petitioner had genuine doubts about the maintainability of the appeal and thus approached this Court directly in its writ jurisdiction. We, therefore propose to entertain this petition by keeping the question of maintainability of an appeal open to be decided in an appropriate case.
5. On behalf of the revenue, it is contended that as determined by the Additional Commissioner of Sales Tax, Pune and the Commissioner of Sales Tax, the petitioner would not be entitled to interest on delayed refund as after the passing of the order by the Assessment officer dated 31.3.1997, a show cause notice to revise the said order was issued to the petitioner on 23.9.1999 and ultimately the order of the Assessing officer came to be quashed on 6.1.1998. It is further contended that in these circumstances, there was no final refund order in favour of the petitioner till the assessment order was restored by the Tribunal vide its order dated 30.3.2003. After perusing the facts of the case and the concerned provisions, we find that the claim made by the petitioner for grant of interest under Section 44A is sustainable and all the contentions of the respondents in this regard need to be rejected. The scheme of Section 44A of the Bombay Sales Tax Act relating to interest on delayed refund read with Section 44B is contained in the said Act and it would be useful to reproduce Sections 44A and 44B of the Bombay Sales Tax Act, 1959. They are as under.
44A-Interest on delayed refunds-(1) Where an amount required to be refunded by the Commissioner to any person by virtue of an order issued under this Act is not so refunded to him within ninety days of the date of the order, the State Government shall pay such person simple interest at six per cent per annum on the said amount from the date immediately following the expiry of the period of ninety days to the date of the refund.
[Provided that where the amount becomes refundable by virtue of an order of the Tribunal, the interest under the provisions of this section shall be payable from the date immediately following the expiry of period of ninety days from the date of receipt of the order of the Tribunal by the officer whose order forms the subject of the appeal or revision proceedings before the Tribunal, to the date of refund.]
Explanation-If the delay in granting the refund within the period of ninety days aforesaid is attributable to the dealer, whether wholly or in part, the period of the delay attributable to him shall be excluded from the period for which interest is payable.
(2) Where any question arises as to the period to be excluded for the purposes of calculation of interest under the provisions of this section, such question shall be determined by the Commissioner, whose decision shall be final.]
44B-Power to withhold refund in certain cases(1) Where an order giving rise to a refund is the subject matter of an appeal or further proceeding or where any other proceeding under this Act is pending, and the authority competent to grant such refund is of the opinion that the grant of the refund is likely to adversely affect the revenue, such authority may, with the previous approval of the Commissioner, withhold the refund till such time as the Commissioner may determine.
(2) Where a refund is withheld under Sub-section (1) the State Government shall pay interest in accordance with the provisions of the last preceding section on the amount of refund ultimately determined to be due to the person as a result of the appeal or further proceeding, for the period from the date immediately following the expiry of ninety days from the date of the order referred to in Sub-section (1) to the date of refund.
6. On reading the aforesaid two sections harmoniously, we find that an assessee is entitled to interest on refund at the prescribed rate, if a refund is not made within 90 days from the refund order. Under Section-44B where an order giving rise to a refund is challenged in appeal or further proceeding and the authority competent to grant such refund is of the opinion that the grant of the refund is likely to adversely affect the revenue, such authority may, with the previous approval of the Commissioner, withhold the refund till such time as the Commissioner may determine. In the present case, the procedure prescribed under Section 44B was never followed. Even assuming that same has been followed, under Section 44B(2), the assessee would become entitled to refund amount if the appeal/further proceeding was decided in his favour and the State Govt. was statutorily bound to pay such interest from the date immediately following the expiry of the period of 90 days of the order referred to under Section 44B(1) till the date of the refund. From a reading of the aforesaid two sections, it is clear that merely because a revision is pending, the State Government would not be entitled to withhold the refund amount. If the appeal was allowed the assessee would once again become entitled to claim interest on delayed refund under Section-44A, the moment the Tribunal or the Court of Law set aside the revisional order and restored the assessment order, in our view, Section-44B is not at all attracted to the facts of the present case. The petitioner is therefore, entitled for interest on delayed refund for a period from 1.7.1997 till the date of actual payment i.e. 6.2.2004. During this period, the prescribed rate of interest was 9% p.a. and hence, we direct the respondents to pay simple interest at the rate of 9% p.a. on amount of Rs. 79,00,000/- for the period from 1.7.1997 to 6.2.2004.
7. Rule is thus made absolute and the petition stands disposed off.