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TMI Blog2008 (11) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... to be ₹ 6,750 in place of ₹ 98,262 in the second refund application dated November 3, 2007 within a period of four weeks from today. It is so required because the petitioner claimed refund amount of ₹ 98,262 in its second application as no refund had been made to the petitioner on its first refund application dated October 1, 2002. The writ application is disposed of with direction to opposite party No. 1 to release the refundable amount in favour of the petitioner along with interest. - W.P. (C) No. 6619 of 2008 - - - Dated:- 19-11-2008 - CHAUHAN B.S. DR. C.J. AND MAHAPATRA B.N. , JJ. B.N. MAHAPATRA J. This writ petition has been filed with a prayer to issue a writ in the nature of mandamus directing opposite party No. 1, the Sales Tax Officer, Rourkela II Circle, Panposh, Rourkela, to refund a sum of Rs. 98,262 along with interest at 24 per cent per annum from the date of application dated October 1, 2002 (annexure 5) till the date of refund and to quash the order dated September 13, 2007 passed by opposite party No. 1 under annexure 1 rejecting the petitioner's application dated October 1, 2002 for refund of Rs. 91,512 for the year 1996-97 on the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pati, learned counsel appearing on behalf of the petitioner, submits that the refund of Rs. 91,512 flew from the order of assessment dated December 22, 1997 passed by opposite party No. 1, which was confirmed by opposite party No. 2 vide its order dated July 20, 2002 in the first appeal. Therefore, opposite parry No. 1 is obliged under the law to refund the said amount to the petitioner on its refund application dated October 1, 2002 (which date has been wrongly mentioned by O.P. No. 1 as October 11, 2002). Opposite party No. 1 in its order dated September 13, 2007 (annexure l) has not assigned any reason as to why the refund application dated October 1, 2002 was kept pending for such a long period and only on September 13, 2007 it was held to be premature. There is no provision under the statute enabling opposite party No. 1 to keep the refund application flowing from the assessment order and after being confirmed by first appellate order. He further submits that pursuant to the re-computation order dated August 30, 2007 (annexure 2), the petitioner made another refund application on November 3, 2007 (annexure 8) for refund of Rs. 98,262 as no amount was refunded to him by that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of payment? At this juncture, it is necessary to know what is contemplated in sections 14, 14C and 14D of the OST Act and rules 39 and 40 of the Orissa Sales Tax Rules, 1947 (hereinafter called the OST Rules ). The relevant provisions of these sections and rules are reproduced below: Section 14. Refunds. The Commissioner shall, in the prescribed manner, refund to a dealer applying in this behalf any amount of tax, penalty or interest paid by such dealer in excess of the amount due from him under this Act, either by cash payment or by deduction of such excess from the amount of tax, penalty or interest due in respect of any other period: Provided that no claim to refund of any tax, penalty or interest paid under this Act, shall be allowed unless it is made within twentyfour months from the date on which the order of assessment or order imposing penalty, as the case may be, was passed or from the date of the final order passed on appeal, revision or reference in respect of the order earlier mentioned, whichever period is later: Provided further that no claim to refund of any tax, penalty or interest paid under this Act shall be allowed in cases where there is an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the OST Act, either by cash payment or by deduction of such excess from the amount of tax, penalty or interest due in respect of any other period. Proviso to the said section prescribes a time-limit for claiming such refund. According to the said proviso, a dealer can claim refund within two years of passing of the assessment order or final order passed on appeal, revision or reference, whichever period is later. Where there is an order for reassessment, until the said reassessment is finalized no claim to refund of any tax, penalty or interest shall be allowed. Thus, if appellate or revisional authority set aside the assessment or directed re-computation of the tax liability, in that event the dealer is entitled to make an application for refund from the date of receipt of the order passed by the Sales Tax Officer pursuant to the direction of the appellate or revisional authority [See Sinclair Murray Company (Pvt.) Ltd. v. State of Orissa [1970] 26 STC 451 (Orissa)]. Rules 39 and 40 of the OST Rules prescribe the form for application of such refund and order sanctioning refund with interest, if any. Thus, for the purpose of claiming refund under section 14, there must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication is not otherwise maintainable being incorrect, incomplete or not in order, he should within a period of ninety days pass appropriate order after making such inquiry as he considers necessary by giving the dealer an opportunity of being heard. In the case at hand, as it appears, opposite party No. 1 slept over the refund application for about five years, which was not warranted from a responsible officer of the Government. The contention of the Revenue that since both the petitioner and State filed second appeal, there was no occasion for opposite party No. 1 to release the refundable amount on the basis of the petitioner's application for refund filed pursuant to first appellate order is not tenable at all. Under section 14, the opposite party No. 1 is bound to release the refundable amount that flowed from the assessment order itself as well as first appellate order. Section 14D authorizes the Commissioner to withhold the refund for some time where an order giving rise to a refund is the subject-matter of an appeal or further proceeding under the OST Act. This is the only enabling provision available to the Commissioner to withhold the refund till such time as he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r annum on the refund amount of Rs. 98,262 from the date of filing of the first refund application, i.e., October 1, 2002. The petitioner in his refund application dated October 1, 2002 (annexure 5) has claimed refund of Rs. 91,512. The said amount of refund flows from the order of the assessing officer, which was confirmed by the Assistant Commissioner. The refund of Rs. 98,262 flows only from the re-computation order dated August 30, 2007 passed vide annexure 2 by opposite party No. 1 in pursuance of the orders of the Sales Tax Tribunal passed in S.A. No. 1155 of 2002-03 and S.A. No. 1379 of 2002-03. Thus, this enhanced amount of refund neither flows from the order of assessment nor from first appeal order. That apart, the petitioner's right to get refund depends upon filing of a valid refund application as provided in section 14 of the OST Act read with rule 39 of the OST Rules. The application dated October 1, 2002 was filed by the petitioner for refund of Rs. 91,512 only. Therefore, the claim of the petitioner for payment of interest on the enhanced amount of Rs. 98,262 on its first refund application dated October 1, 2002 is not sustainable. The petitioner is only entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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