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TMI Blog2007 (7) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Officer-cum-Assessing Authority, Sonepat-respondent No. 2 is directed to pay interest to the assessee-petitioner for the delayed payment of refund. The interest shall be calculated at the rate of 12 per cent per annum in respect of delay for the first month of delay and at the rate of 18 per cent per annum in respect of delay caused for the subsequent months. - - - - - Dated:- 20-7-2007 - KUMAR M.M. AND AJAY KUMAR MITTAL , JJ. The judgment of the court was delivered by M.M. KUMAR J. The right to payment of interest on refund has once again been raised in this petition filed by M/s. Escotel Mobile Communication Ltd. (for brevity, the assessee-petitioner ) by invoking the writ jurisdiction of this court under article 226 of the Constitution. It has been prayed that direction be issued to the respondent-State to refund Rs. 95,66,924 plus interest (46,58,324 + 49,08,600 plus interest) for the assessment years 2000-01 and 2001-02. The assessee-petitioner was a registered dealer under the Haryana General Sales Tax Act, 1973 (for brevity, the Act ) as well as the Central Sales Tax Act, 1956 (for brevity, the 1956 Act ). Subsequently, it has been registered, after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the assessment years, as already noticed in the preceding para, be refunded. On May 17, 2006, the assessing authority asked the assessee-petitioner to appear on June 12, 2006 before it for recalculation of the tax liability for the assessment years 2000-01 and 2001-02 to determine the refund amount (P4). Accordingly, the representative of the assessee-petitioner appeared on June 12, 2006 but the hearing was deferred to June 21, 2006. The Assessing Authority, vide orders dated June 21, 2006 (P5 and P6) recalculated the tax for the assessment years 2000-01 and 2001-02 under the Act and found that the assessee-petitioner was entitled to refund of Rs. 95,66,924 in respect of both the assessment years. The Assessing Authority further observed in his orders, annexures P5 and P6, that applications for refund have already been filed by the assessee-petitioner and refund may be allowed. The assessee-petitioner did not receive the recalculated amount of refund as per the orders dated June 21, 2006 passed by the Assessing Authority and it had to send a reminder dated February 15, 2007 (P7). Despite reminder and the clear position in law, no refund was made, which led to the filing of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se and Taxation Commissioner, Haryana, through proper channel, which consumed some time and order was passed on April 16, 2007 for refund of an amount of Rs. 49,08,600 and accordingly refund voucher for the aforementioned amount was given to the assessee-petitioner on May 30, 2007. It is claimed that the assessee-petitioner is not entitled to any interest under section 43 of the Act read with rule 35 of the Rules. The factual position with regard to the amount of refund and its receipt as pleaded in the written statement has not been disputed by Mr.Avneesh Jhingan, learned counsel for the assessee-petitioner. However, he has argued that interest as per section 43(2) of the Act read with rule 36 of the Rules is required to be paid at the rate of 12 per cent in respect of the first month and at the rate of 18 per cent in respect of the later period. In support of his submission, apart from placing reliance on the statutory provisions, learned counsel has relied upon a Division Bench judgment of this court in the case of Punjab State University Text Book Board v. State of Punjab [1990] 79 STC 216, which has also been followed by this court in the case of Haryana Drinks Private Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required by sub-section (2A) or by sub-section (3), he shall be liable to pay in addition to the tax payable, simple interest on the amount of tax remaining unpaid at one per cent per month from the date commencing with the date following the last date for the payment of tax, for a period of one month and at one and a half per cent per month thereafter during the period he continues to make default in the payment: (emphasis(1) added) Provided that where the amount of tax not paid as required under sub-section (2A) or sub-section (3) does not exceed five hundred (1)Here italicised. rupees, the interest payable thereon shall not exceed the amount of tax not so paid: Provided further that for the purposes of calculation of interest, a period of fifteen days or more shall be deemed to be one month and the amount of fifty rupees or more but less than one hundred rupees shall be deemed to be one hundred rupees and a period of less than fifteen days and an amount of less than fifty rupees shall be ignored. . . . Section 43. Refunds. (1) The assessing authority or a person appointed to assist the Commissioner under sub-section (1) of section 3, as the case may be shall, in the prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und of any amount becomes payable under rule 24A, the assessing authority shall examine claim and order the refund as admissible within thirty days of the receipt of the application of the dealer along with the relevant return. The refund shall be provisional and shall be subject to the assessment to be made under the Act. The provisions of sub-rule (1) shall apply mutatis mutandis, in relation to determination and manner of payment of refund and interest thereon, if any. (2) Where the refund of tax is claimed in respect of any declared goods, sale or purchase of which has been subjected to tax, under the Act prior to the sale of such goods in the course of inter-State trade or commerce and in respect of which tax under the Central Sales Tax Act, 1956, has been paid, the dealer who effected the inter-State sale of such goods shall make an application for refund in form ST 32 and append thereto the following documents, namely: (i) certificate(s) in form ST.14 in respect of each transaction from the registered dealer who paid tax under the Act on an earlier transaction of sale or purchase of the goods; (ii) a copy of the return in form ST 9 or ST 10 or both, as the case may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and also to the Commissioner stating briefly the reasons for the delay in allowing the refund. (2) Where an order for the payment of interest on delayed refunds under sub-rule (1) has been made, the sanctioning authority shall issue to the dealer interest payment order in form S.T. 35. A perusal of section 43 of the Act makes it obvious that the Assessing Authority or any other person is under an obligation to pay refund to a dealer or to any other person, the amount of tax or penalty or interest paid by him in excess of the amount due from him, by a refund voucher or at the option of the dealer make adjustment of the amount so paid. A further perusal of sub-section (2) of section 43 of the Act would manifest that the (1)Here italicised. dealer has been held entitled to interest at such rate and on such terms and conditions as may be prescribed. Rule 35(1)(b) of the Rules clearly provides that in case the refund has become due on account of an appellate order then the amount so determined has to be refunded within 90 days from the date of filing the application. For the rate of interest provision has also been made in rule 35(1)(b) that a dealer is entitled to interest a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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