2018 (5) TMI 1614 - HC - VAT and Sales Tax

Refund with interest - time barred deemed assessment - Held that - In the present case, the initial assessment order dated 26.3.2013 had been set aside which was sent by registered post bearing No. 2791 dated 10.12.2013 as per Annexure P.7 appended alongwith replication. The assessment order in pursuance of remand order passed on 29.12.2016 as per Annexure R.1 attached with the written statement, was clearly barred by limitation as it had not been passed within the limitation period - the assessment of the petitioner company would be governed by Section 15(1) of the Act as a case of deemed assessment in terms of the return filed on 25.11.2010 wherein the petitioner had claimed refund on account of excess tax deposited/deducted towards its liability for the said year - petitioner was entitled to refund of ₹ 30,42,838/- in accordance with law - Petition allowed.

Summary

Issues:
- Direction to issue refund due to the petitioner company along with statutory interest for the assessment year 2009-10.
- Maintainability of the petition due to the availability of statutory appeal under Section 33 of the HVAT Act.
- Interpretation of Section 18(1) of the HVAT Act regarding the limitation period for assessment in consequence of any order made by any court or authority.

Analysis:
1. The petition sought a direction for the issuance of a refund along with statutory interest for the assessment year 2009-10, based on an annual return deemed as time-barred assessment. The petitioner, engaged in construction and repair of roads, was a registered dealer under the HVAT Act and the CST Act. The grievance arose from the illegal withholding of a tax refund of ?30,42,838/- for the said assessment year, which had become time-barred. Despite appeal success and remand for de novo assessment, the refund was not issued by the assessing authority, leading to the petition.

2. The respondent argued against the maintainability of the petition, citing the availability of a statutory appeal under Section 33 of the HVAT Act. The respondent contended that the petitioner had not claimed a refund but only an excess carried forward amount. However, the petitioner's claim for refund was based on the excess tax deposited/deducted, emphasizing the need for the refund due.

3. The interpretation of Section 18(1) of the HVAT Act was crucial in determining the limitation period for assessment following an order by a court or authority. The petitioner relied on this section to argue that the assessment order passed on 29.12.2016 was beyond the limitation period, thus justifying the release of the refund. The court agreed that the assessment order was barred by limitation and that the petitioner was entitled to the refund of ?30,42,838/- in accordance with the law.

4. The court, after hearing arguments from both sides, allowed the writ petition and directed the respondent to refund the amount within one month from the date of receipt of the order. This decision was based on the clear violation of the limitation period for assessment and the petitioner's rightful claim for the refund as per the law.