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2022 (4) TMI 1298 - HC - VAT and Sales TaxRefund of admitted tax - eligibility of refund to non-registered dealers - time limitation - HELD THAT - It is pertinent to mention at this stage that this Court on similar facts in the petitioner s own case, M/S. WS RETAIL SERVICES PRIVATE LIMITED VERSUS THE STATE OF JHARKHAND, THROUGH THE SECRETARY, FINANCE DEPARTMENT, RANCHI, THE COMMISSIONER OF COMMERCIAL TAXES, RANCHI, JOINT COMMISSIONER OF COMMERCIAL TAXES (ADMIN) , RANCHI 2021 (2) TMI 972 - JHARKHAND HIGH COURT has held that the rejection of claim for refund only on the ground that there is no provisions under the JVAT Act, 2005 for entertaining such a claim is not sustainable in law. It is undisputed that in the present case the limitation period for even Financial Year 2015-16 has also expired and no assessment has been carried out. As a corollary, no demand notice in terms of such assessment has been issued. Therefore, in the light of Section 39 of the JVAT Act, the limitation period having expired, assessment would be impermissible in respect of Financial Years 2014-15 and 2015-16. It was open to the Respondent to conduct an assessment in terms of Section 38 of the JVAT Act and make good the stand it has taken in its counter affidavit as regards the intra-state nature of transactions. Having not done so, it cannot be allowed to take advantage of its own wrong. Matter is remitted to the Respondent No. 3-Joint Commissioner of State Tax (Admin), Ranchi Division, Ranchi / Joint Commissioner of State Tax (Admin), Jamshedpur Division, Jamshedpur to consider the claim of refund of the petitioner in accordance with law within a period of six weeks from today - Petition allowed.
Issues Involved:
1. Claim of refund for amounts paid under JVAT Act for Financial Years 2014-15 and 2015-16. 2. Whether the petitioner, an unregistered dealer, is entitled to a refund under JVAT Act. 3. Legality of the orders rejecting the refund claims. 4. Whether the transactions were intra-state or inter-state sales. 5. Applicability of Article 265 of the Constitution of India regarding unauthorized tax collection. 6. Validity of assessment proceedings under JVAT Act. 7. Impact of prior judgments on similar issues. Detailed Analysis: 1. Claim of Refund for Amounts Paid: The petitioner sought a refund of ?3,62,11,470/- and ?2,80,13,879/- for the financial years 2014-15 and 2015-16, respectively. The Joint Commissioner of State Tax (Admin.) rejected these claims on the grounds that there is no provision under the JVAT Act for refund to non-registered dealers and that the petitioner had paid these amounts as admitted tax. 2. Entitlement of Unregistered Dealer to Refund: The petitioner argued that they are entitled to a refund despite being unregistered under the JVAT Act. They relied on the case of Suresh Chandra Bose Vs. State of W.B, which held that under Section 52 of the JVAT Act, any person covered within the definition of "Dealer" can file for a refund, irrespective of registration status. 3. Legality of Orders Rejecting Refund Claims: The orders dated 01.08.2017 and 23.01.2018 rejecting the refund claims were challenged. The Commercial Taxes Tribunal had also observed that a revision petition against the JCCT (Admin.)'s order was not maintainable and that no returns for the assessment year in question were brought on record by the petitioner. 4. Nature of Transactions - Intra-State vs. Inter-State: The respondents argued that the transactions were intra-state sales, citing that the petitioner had declared themselves as consignee and received goods in Jharkhand, delivering them to different customers. However, the petitioner contended that VAT could not be collected on transactions where CST had already been charged in the state of origin, citing judgments like WS Retail Services Private Limited Vs. Union of India and Flipkart Internet (P.) Ltd. Vs. State of Kerala. 5. Applicability of Article 265 - Unauthorized Tax Collection: The petitioner argued that retaining the amounts without any tax liability violated Article 265 of the Constitution, which states that no tax shall be levied or collected except by the authority of law. They cited cases like HMM Ltd. Vs. Administrator, Bangalore City and Arvind Lifestyle Brands Ltd. Vs. Under Secretary, Technology Development Board & Ors. to support their claim for a refund of amounts collected without authority of law. 6. Validity of Assessment Proceedings: The court noted that any assessment for the financial year 2014-15 was impermissible due to the expiration of the five-year limitation period under Section 39 of the JVAT Act. For the financial year 2015-16, the court observed that no assessment had been carried out within the limitation period, making any subsequent assessment impermissible. 7. Impact of Prior Judgments: The court referenced its own prior judgment dated 09.02.2021 in W.P.(T) No. 2429 of 2018, where it was held that the petitioner was entitled to a refund as the transactions were inter-state in nature and no assessment had been carried out within the limitation period. The same principles were applied to the present case. Conclusion: The court set aside the orders rejecting the refund claims and remitted the matter to the Joint Commissioner of State Tax (Admin) for reconsideration in accordance with the law. The court emphasized that the petitioner's challenge to the penalty under Section 72(3) of the JVAT Act was not pressed. The writ petitions were allowed to the extent indicated, reaffirming the principles laid down in prior judgments regarding unauthorized tax collection and the entitlement of unregistered dealers to refunds under the JVAT Act.
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