G.S.SINGHVI, J. - (1.) THE petitioner-company is a Government of India undertaking and is carrying on its business of fertilizers in whole of the country including the State of Punjab. It is a dealer registered under the Punjab General Sales Tax Act, 1948 (for short "the Punjab Act" ). For the assessment year 1979-80 the Assessing Authority assessed it for tax amounting to Rs. 4,52,027. The petitioner filed an appeal against the order of assessment and also applied for exemption from payment of tax. This request was turned down by the appellate authority. When further appeal was taken to the Sales Tax Tribunal, the latter passed an order dated December 4, 1985, annexure P1 and directed the petitioner to deposit a total sum of Rs. 4,00,000 with reference to the two cases. A direction was given to the appellate authority to hear and decide the appeals on payment of Rs. 4,00,000 by the petitioner-firm. In pursuance of this direction, the petitioner deposited Rs. 4,00,000 vide cheque dated February 12, 1986, which was encashed by the respondents on February 20, 1986. passed by the Assessing Authority was quashed by the Deputy Excise and Taxation Commissioner (Appeals), Ferozepore Division, who remanded the case to the Assessing Authority vide order dated May 22, 1986. This remand order was also set aside by the Sales Tax Tribunal, Punjab, vide order dated December 11, 1986, annexure P4.
(2.) IMMEDIATELY after the passing of order dated May 22, 1986, by the appellate authority, the petitioner made an application for refund of the amount deposited by it in pursuance of the earlier direction given by the Tribunal. After acceptance of the appeal by the Tribunal vide order dated December 11, 1986 (annexure P4), the petitioner once again submitted an application dated February 17, 1987, for the refund of the amount deposited by it. However, refund of the tax deposited by the petitioner was delayed for about five years. Payment was made to the petitioner on September 15, 1992 (Rs. 2,00,000) and October 23, 1992 (Rs. 2,00,000 ). On account of delaying the refund of the amount, the petitioner claimed interest and for that purpose it made representations annexures P9 and P10. Having failed to persuade the departmental authorities to make payment of interest in terms of section 12 (3) of the Punjab Act read with rule 50 of the Punjab General Sales Tax Rules, 1949 (for short "the 1949 Rules"), the petitioner has filed this writ petition under article 226 of the Constitution and sought a writ of mandamus against the respondents for payment of interest on the amount of refund which was withheld by the respondents for a period of about 5 years. Notice of this petition was given to the respondents on April 28, 1994. No reply has been filed by the respondents. In our opinion, in the face of the clear averments made in the writ petition and the various documents which have been placed on record, a factual reply is not even necessary. The only argument advanced by the learned counsel for the petitioner is that with the setting aside of the order of assessment the petitioner became entitled to the refund of the amount of tax deposited by it and failure of the respondents to refund the said amount was without any legal authority and without any justification. He argued that the delay in refund of the amount of tax was not at all attributable to the petitioner and, therefore, it was the duty of the respondents to have paid interest to the petitioner for the delay in the refund of the amount of tax. The learned counsel argued that section 12 (3) of the Punjab Act gives a right to the assessee to get interest on the amount of tax deposited by it as soon as an order of refund is made. If the payment of the amount of refund is withheld, it is the duty of the Assessing Authority to pay interest on the amount of refund. Shri Walia appearing for the respondents could not point out any provision of law which empowers the Assessing Authority or any other competent authority to withhold payment of refund ordered by the appellate authority or the Tribunal. In view of this position, it must be held that the amount of tax, which was to be refunded to the petitioner in terms of the order passed by the appellate authority and the Tribunal, was unlawfully withheld by the respondents. Section 12 (3) of the Punjab Act and rule 50 of the 1949 Rules, read as under : Section 12 (3) of the Punjab Act : " Where any amount required to be refunded by the Assessing Authority to any person by virtue of an order issued under this Act is not refunded to him within ninety days of the date of the order, the dealer shall be entitled to get simple interest on such amount at the rate of one per centum per month from the date immediately following the date of expiry of the said period for a period of one month and thereafter at the rate of one and a half per centum per month till the refund is made : Provided that for the purpose of calculation of the interest, part of a month shall be considered as one month and any amount less than one hundred rupees shall be considered as one hundred rupees. " Rule 50 of the 1949 Rules : " Where a refund payment order or a refund adjustment order is issued under rule 49, the authority issuing such order shall simultaneously record an order sanctioning the interest payable, if any, under sub-section (3) of section 12 on such refunds specifying therein, the amount of refund, the payment of which was delayed, the period of delay for which such interest is payable and the amount of interest payable by the State Government and shall communicate the same to the dealer to whom the interest is payable and also to the Commissioner stating briefly the reasons for the delay in allowing the refund. Where an order for the payment of interest on delayed refund under this rule has been made, the sanctioning authority shall issue to the dealer interest payment order in form ST. XVII-D".
(3.) THE above quoted provisions clearly show that if the amount required to be refunded by the Assessing Authority is not so refunded to him within 90 days of the date of order, the dealer becomes entitled to get interest specified in that section and it is the duty of the authority refunding the amount to indicate the amount of interest payable to the dealer. Failure of the respondents to refund the amount despite the quashing of the order of assessment is without any reason or rhyme. In its order dated December 11, 1986, the Tribunal had clearly observed that consequential reliefs, if any, may be allowed to the appellant dealer. As early as on February 17, 1987, the petitioner had made an application to the Excise and Taxation Commissioner, Bhatinda, to refund the amount of tax deposited by it.;