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TMI Blog2012 (2) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In view of provisions of Section 51, department is not justified in keeping the refund application pending inordinately without explanation. The refund, if any, that is found due and payable to the Petitioner in accordance with law shall, subject to the due satisfaction of the competent authority in regard to the entitlement of the Petitioner and the validity of the bank guarantee furnished, be granted expeditiously and preferably within a period of one month from date of order - Decided in favor of petitioner. - WRIT PETITION NO.11168 OF 2011 - - - Dated:- 9-2-2012 - DR.D.Y.CHANDRACHUD M.S. SANKLECHA, JJ. Mr. Vikram Nankani with Mr. Monish Panda i/b Mr. Madhur R. Baya for the Petitioner. Mr. Vinay A. Sonpal, A Panel coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ales Tax. Since the refunds were not granted, the Petitioner filed an earlier petition before this Court, Writ Petition 10339 of 2010, in which rule has been granted. Refunds were sanctioned and granted by the Revenue, forming the subject matter of the earlier petition. 5. On 28 April 2011, the Petitioner filed its returns for the period between January to March 2011 and a refund application for an amount of Rs.2.56 Crores was filed on 10 August 2011. The Petitioner submitted bank guarantees dated 16 September 2011 for facilitating the grant of a refund. Despite several letters addressed in September, November and December 2011, refund has not been sanctioned for the period between January to March 2011. Consequent thereto the present pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 8(3); (iii) a holder of a certificate of entitlement under any Package Scheme of Incentives except the New Package Scheme of Incentives for Tourism Projects. 1999; (iv) a dealer selling goods in interstate trade or commerce; and (v) the Canteen Stores Department or the Indian Naval Canteen Services. In case of those dealers who PNP 4 WP11168-9.2.sxw fall in any of the categories specified in subsection (3) the Commissioner may within a period of one month of the receipt of the application require the dealer to furnish bank guarantees and may call for additional information. Under subsection (4), the Commissioner is required to grant a refund within three months of the receipt of the application under the section or receipt of addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a bank guarantee irrespective of whether additional information has or has not been furnished. Under clause (b) of subsection (6) a provision has been made to the effect that if it is found as a result of any order passed under the Act that the refund granted under the Section is in excess of the refund, if any, as determined by the order, then the excess amount shall be recovered as if it is an amount of tax due from the dealer and the dealer shall be liable to pay simple interest at the prescribed rate per month or part thereof from the date of the grant of refund. 9. Counsel appearing on behalf of the Petitioner submits that since the Petitioner falls within subclause (3) of clause (a) of subsection (3) of Section 51, there is an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication may require the dealer to furnish a bank guarantee and call for additional information as he may think necessary. Subsection (4) prescribes the period of three months from the receipt of the application or additional information, whichever is later for the grant of a refund. If additional information is not furnished, even then a refund has to be granted within six months of the receipt of the application. However, under subsection (5), a nonobstante provision has been made which operates notwithstanding anything contained in the Section. Under subsection (5) therefore, the Commissioner is obligated to grant a refund due within one month of the furnishing of the bank guarantee. Under subsection (6) (b) however, it has been stipulate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication of the tax credit, if any, in respect of the Petitioner. This exercise should be completed expeditiously. The refund, if any, that is found due and payable to the Petitioner in accordance with law shall, subject to the due satisfaction of the competent authority in regard to the entitlement of the Petitioner and the validity of the bank guarantee furnished, be granted expeditiously and preferably within a period of one month from today. We clarify that the grant of the refund shall be provisional in accordance with the statutory provisions and shall have to necessarily abide by such final orders as may be passed in accordance with law, determining the liability of the Petitioner. Insofar as the prayer for the grant of interest is c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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