2017 (7) TMI 1021 - HC - VAT and Sales Tax

Refund of tax remitted by the petitioner - Section 22(2) of the TNGST Act - penalty - natural justice - rejection of refund on the ground that the petitioner did not file the name of the real beneficiary to whom the refund has to be granted either before the Assessing Officer or the Appellate Authority or even before the Tribunal - Held that - the Tribunal rightly understood the legal effect of such an order of assessment, wherein the turnover of the petitioner fell below the taxable minimum and the rate of tax was nil and therefore, the Tribunal observed that the amount collected by way of tax from the petitioner at ₹ 24003/- has been retained by the Assessing Officer without any demand or invoking any penal provision as provided under Section 22(2) of the TNGST Act. Thus, answer to the question as to whether the respondent can retain the amount of tax is in the negative. In the absence of any provision corresponding to Sections 11-B and 12-A of the Central Excise and Salt Act, 1944, in the Tamil Nadu General Sales Tax Act, it is not permissible for the authorities under the Act to impose a penalty on the sole ground that it is meant to offset a refund, the result of making which would result in unjust enrichment to the dealer. In the case on hand, the Tribunal took note of this legal position and made an observation as to how the Assessing Officer was not justified in retaining the tax amount to his account. The Assessing Officer has assessed the petitioner to a nil rate of tax. Therefore, the respondent is not justified in retaining the amount to himself and the interpretation given by the respondent stating that the petitioner has not produced the name of the ultimate beneficiary or the person who has paid the tax is of no consequence, as the there is no law which empowers the respondent to retain the tax, which was remitted by the petitioner in the absence of any assessment. The petitioner is entitled for the refund of the tax remitted by them - petition allowed - decided in favor of petitioner.

Summary

Issues:
Challenge to rejection of application for tax refund by the respondent.

Analysis:
1. The petitioner, a registered dealer under the Tamil Nadu General Sales Tax Act, challenged the rejection of their refund application by the respondent, which was based on an order stating no tax was due due to the turnover falling below the taxable minimum.

2. The petitioner had remitted a tax amount but was not granted a refund, leading to appeals to the Appellate Assistant Commissioner and the Tamil Nadu Sales Tax Appellate Tribunal, which directed the petitioner to approach the Assessing Officer for redressal.

3. The petitioner filed applications for refund citing legal provisions and a court decision, but the respondent rejected the applications, stating the petitioner did not disclose the beneficiary of the refund and mentioning unjust enrichment as per the Supreme Court's decision.

4. The High Court analyzed whether the respondent had the jurisdiction to retain the tax amount after determining no tax was due, concluding that the amount should not have been retained without invoking penal provisions.

5. The Court referenced a previous case involving gallonage fee treatment in turnover, emphasizing that in the absence of specific provisions, imposing a penalty for unjust enrichment is not permissible under the TNGST Act.

6. Referring to legal principles, the Court highlighted that unless money collected is due as tax, the State cannot retain it, especially when an assessment resulted in a nil rate of tax for the petitioner.

7. The Court noted that the case predated certain legislative amendments, making it clear that the respondent had no legal basis to retain the tax amount remitted by the petitioner, who was entitled to a refund due to falling below the taxable minimum turnover.

8. Ultimately, the Court allowed the writ petition, setting aside the impugned order and directing the respondent to refund the tax amount paid by the petitioner within a specified timeframe, with the option to adjust the amount towards any current tax dues if the petitioner continues their business under relevant tax acts.