THE HON’BLE SRI JUSTICE T. VINOD KUMAR AND THE HON’BLE SMT. JUSTICE P.SREE SUDHA Writ Petition No.1984 of 2007 ORDER:(per Hon’ble Sri Justice T.Vinod Kumar)

This Writ Petition is filed for issuance of a Writ of Mandamus directing the 1^st respondent to refund a sum of Rs.1,22,44,725/- together with interest in terms of Section 33E of the Andhra Pradesh General Sales Tax Act, 1957 (for short, ‘the Act’) pursuant to the refund claims made by the petitioner in Form XXXIII dt.17.09.2004, 31.12.2005, 04.02.2006 and 25.09.2006 for the assessment years 1994-95, 1996-97, 1998-99, 2002-2003, 2003-2004 and 2004-2005 made under the Act and to declare the proceedings dt.20.01.2006 issued by the 2^nd respondent insofar as rejecting the claim for refund for the assessment year 1995-95 and 1996-97 being barred by time, is illegal and arbitrary.

2. Heard learned counsel for the petitioner and the learned Special Standing Counsel for Commercial Taxes appearing for the respondents and perused the record.

3. The case of the petitioner in brief is that it is a registered dealer on the rolls of the 1^st respondent and is in the business of execution of works contract; that for the assessment years, 1994-95, 1998-99, 2004-2005, on the 1^st respondent completing the assessment, the same had resulted in refund of tax amounting to Rs.1,20,44,725/-; that on the 1^st respondent passing the orders determining excess tax paid by the petitioner, it had approached the respondents-authorities and submitted its refund claim in Form XXIII for all the above years on 17.09.2004, 31.10.2005, 04.02.2006 and 25.09.2006, respectively; that even though the petitioner had submitted refund claims, since the excess tax determined has not been refunded, the petitioner had filed reminder letters before the 1^st and 2^nd respondents on 23.08.2006, 22.09.2006 and 01.12.2006; and that in spite of the petitioner submitting the refund applications and also addressing reminders, refund of excess tax paid is not granted.

4. Petitioner further contends that it being a dealer in execution of works contract, it had undertaken various works with the departments of Government of Andhra Pradesh; that in terms of Section 5F of the Act, the dealer executing works contract is liable to pay tax @8% on the value of material incorporated in the execution of works contract; and that as per the provisions of Section 5H of the Act, the contractor contract is mandated to deduct tax at source from the bills submitted by the contractor @4% of the bill value and remit the same to the credit of the contractor/dealer; and that the contractee shall also issue a certificate deducting tax at source in Form XX.

5. Petitioner further contends that on the contractee deducting tax at source and issuing Form XX, it had submitted the same with the 1^st respondent along with monthly/annual return and claimed credit for such tax deducted and paid on its behalf; that the assessment for the period 1994-95, 1996-97 and 1998-99 were completed by the 1^st respondent on 21.12.2000, 07.12.2001 and 26.08.2000 resulting in refund of tax in a sum of Rs.12.405/-, 38,14,843/- and 54,045/-, respectively.

6. It is the further case of the petitioner that on the aforesaid assessment orders being passed, it had approached the 1^st respondent authority and filed a refund claim in Form XXIII on 17.09.2004; that though it had filed Form XXIII on 17.09.2004, since, it was not aware that it is required to enclose Refund Order issued in Form-C annexed to the assessment order along with Form XXIII in order to claim refund, the same was subsequently filed once again with Form XXIII on

31.10.2005.

7. Petitioner also contends that insofar as assessment years 2002- 2003 and 2003-04 are concerned, the same were completed by the

1^st respondent on 26.07.2004 and 16.12.2005 respectively, which also resulted in excess tax for which Form C was issued along with assessment orders; and that on receiving the assessment order along with Form C, it had approached