2010 (8) TMI 837 - HC - VAT and Sales Tax

Refund the sum of ₹ 1,62,23,677 collected from the petitioner relating to assessment years 1989-90 to 1994-95 and 1996-97 to 1998-99 together with statutory interest demanded - Held that - Appreciating the stand of the Government, this court expressly reserves the liberty to respondent No. 1 to insist for the indemnity bond or the depositing of title deeds of an unencumbered property. Respondent No. 1 shall examine the claim of the petitioner for the payment of statutory interest. The time for compliance with this order is one month from the date of the production of the certified copy of today s order.

Issues:
1. Petition for refund of tax paid for photographic activities.
2. Judicial pronouncement on photographic activities as a contract of work.
3. Interpretation of relevant legal judgments on the nature of photographic activities.
4. Violation of article 14 in the non-refunding of tax amounts.
5. Pending matter before the Supreme Court affecting the refund decision.
6. Government's plea for security before refunding tax amounts.
7. Consideration of statutory interest on the refunded amounts.

Analysis:
1. The petitioner sought a refund of tax amounting to Rs. 1,62,23,677 paid for photographic activities for specific assessment years. The demand for refund was based on the judicial pronouncement that photographic activities constitute a contract of work, not a sale.

2. The legal counsel relied on various judgments, including a Division Bench ruling and a Supreme Court decision, establishing that photographic activities like developing prints and negatives are service contracts, not sales of goods. This interpretation was crucial in determining the nature of the activities for tax purposes.

3. The petitioner's counsel highlighted previous court judgments upholding the view that photographic activities do not involve the sale of goods. The court referenced specific cases where similar refund requests were granted based on the nature of the activities being considered as service contracts.

4. The petitioner argued a violation of article 14, asserting that other parties in similar situations had already received refunds, creating an unequal treatment scenario. The court considered this argument in the context of ensuring consistent treatment for all parties involved.

5. The Government Pleader mentioned a pending matter before the Supreme Court that could impact the refund decision. The court took note of this pending case and its potential implications on the current refund petition.

6. The Government Pleader requested security before refunding the tax amounts, citing ongoing revision proceedings and the need to quantify the petitioner's tax liability accurately. The court considered this request and reserved the right for the government to demand security before refunding the amounts.

7. The court directed the respondent to examine the petitioner's claim for statutory interest on the refunded amounts and set a timeline for compliance with the refund order, emphasizing the importance of timely action on the matter.

In conclusion, the court ordered the refund of the tax amounts to the petitioner, subject to the outcome of the pending Supreme Court case and the government's right to request security. The judgment aimed to ensure fair treatment, consistency, and adherence to legal principles in resolving the refund petition for the photographic activities.

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