JUDGMENT
Yogeshwar Dayal, C.J.
1. This writ petition under article 226 of the Constitution of India has been filed for a mandamus being issued directing the respondent to refund the tax paid on the disputed turnover immediately with interest.
2. We have given notice to the respondent to show cause as to why this writ petition should not be admitted and the counter-affidavit was directed to be filed by 1st August, 1988. But no counter-affidavit has been filed. With the consent of both the parties, the main writ petition is being disposed of.
3. For the assessment year 1984-85, the petitioner was assessed to tax on gross and net turnovers. The turnover of Rs. 45,15,792.34 relating to liquor and Rs. 4,85,431.46 relating to beer which were shown as stock transfers from wholesale to retail account of the petitioner were assessed to tax at 25 1/2 per cent + surcharge and 10 1/2 per cent + surcharge respectively for liquor and beer, treating the same as sales. Aggrieved by the aforesaid assessment order, the petitioner went up in appeal and the appellate authority, after considering the claims of the petitioner that these were mere transfers from one branch to another and there was no sale, set aside the levy of tax on the aforesaid turnover on the ground that the stock transfers from wholesale to retail account of the petitioner-firm is not a sale under the Andhra Pradesh General Sales Tax Act, 1957, and held that the levy of tax on the aforesaid turnover is improper.
4. Then it is averred in the writ petition that the petitioner received a copy of the order on 13th January, 1988 and was awaiting the consequential order but no refund of tax has been made by the respondent. The order in appeal was received by the petitioner on 13th January, 1988, though the order is dated 8th December, 1987. The petitioner, having not got the refund, sent a letter dated 15th June, 1988, to the Commercial Tax Officer that the refund amount of tax which works out to Rs. 13,22,747 may kindly be refunded immediately and, if this amount cannot be refunded, it was requested that it may be adjusted for the payment of monthly taxes due for the year 1988-89 and orders may be issued accordingly. Instead of getting the refund order or adjustment, the petitioner received a communication dated 18th June, 1988, from the Commercial Tax Officer informing the petitioner that his office cannot revise their assessment order for the year 1984-85 and, therefore, the request for refund of Rs. 13,22,747 cannot be entertained and the question of refund does not arise. Hence, the petitioner’s request was rejected.
5. The learned Government Pleader appearing for the State does not support the order dated 18th June, 1988, passed by the Commercial Tax Officer and action is being taken against the officer for sending such a communication.
6. In view of the request of the petitioner that the amount which is liable to be refunded may be adjusted for the monthly tax due for the year 1988-89, we direct that the sum of Rs. 13,22,747 which was ordered to be refunded may be refunded by way of adjustment towards the payment of monthly tax for the year 1988-89.
Section 33-F(1) of the Andhra Pradesh General Sales Tax Act, 1957, reads as under :
“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 six months from the date of such order, the State Government shall pay to the assessee or licensee simple interest at 12 per cent 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.
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7. It is clear from the provisions of section 33-B read with section 33-F that the refund became due to the assessee within six months from the date of the appellate order, viz., 8th December, 1987, and if the amount is not paid within six months from the date of the order and if the refund is not granted either by way of payment or by way of adjustment, then the assessee is entitled to simple interest at 12 per cent per annum on the amount of refund due from the date immediately following the expiry of the period of six months. The six months period, in the present case, expires on 7th June, 1988. Therefore, the petitioner is entitled to the aforesaid refund along with simple interest at 12 per cent per annum on the amount of refund. Since the assessee exercised the option to receive the refund by way of adjustment for the monthly taxes due for the year 1988-89, the interest will be liable to be paid till the whole amount of refund is discharged.
8. The writ petition is accordingly allowed. The petitioner is also entitled to the costs of the present proceedings, particularly in view of the reply dated 18th June, 1988, sent by the Commercial Tax Officer mentioned earlier a copy of which was also endorsed to the Deputy Commissioner (CT), Abids Division, Hyderabad, which are assessed at Rs. 1,100.
9. Writ petition allowed.