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TMI Blog2009 (5) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... f Surya Dev Rai v. Ram Chander Rai [2003 (8) TMI 527 - SUPREME COURT]. Therefore, there is no blanket bar on the power of the High Court to entertain a petition in the face of an order which is totally without jurisdiction. Accordingly the objection raised by the learned State counsel is rejected. Petitions succeed - C.W.P. No. 19941,13223 of 2005 & 16651,16554 of 2006 - - - Dated:- 7-5-2009 - KUMAR M.M. AND BHALLA H.S. , JJ. The judgment of the court was delivered by M.M. KUMAR J. This batch of four petitions have raised an interesting question of law, namely, whether the higher authorities in the hierarchy of Sales Tax Department, Haryana in the garb of exercising power of granting sanction under rule 36 of the Haryana General Sales Tax Rules, 1975 to the refund orders passed by the assessing officer, could set aside such order of assessment. The aforesaid question has arisen in pursuance of various orders passed in these petitions whereby the order of assessment has been set aside. For the sake of convenience, facts are being referred from CWP No. 19941 of 2005. The petitioner-firm is duly registered under the Haryana Value Added Tax Act, 2003 (for brevity, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1,18,374 in respect of assessment year 1999-2000 should be adjusted against the amount of refund allowed for Rs. 1,53,628 in respect of assessment year 2001-02 (P1). The amount of refund/adjustment as indicated in the assessment order dated February 14, 2005 and February 16, 2005 (P1 and P2), has not been released. Accordingly, the petitioner filed an application on August 16, 2005 praying for refund/adjustment of the amount as per the assessment orders. In pursuance of rule 36, the pecuniary jurisdiction for passing the order of refund is vested in the Deputy Excise and Taxation Commissioner (to be referred as DETC ). The Assessing Authority forwarded the application of the petitioner-firm with his own recommendation and requested for approval of the refund as per the assessment orders. The DETC after examining the case has opined that the amount of refund worked out by the Assessing Officer could not be approved in view of the provisions of section 15A of the Act. He issued notice for appearance to the petitioner with a view to seek its explanation (P4 and P5). The petitioner sent their reply on September 10, 2005 and took the stand that section 15A of the Act was not appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rules on the basis of following rationale which reads thus: Further this section 15A is also subject to the provision contained in clause (iii) of sub-section (1) of section 15, which deals with the levy of tax on paddy purchased from within the State and used in the manufacture of rice. This clause (iii) provides that the tax leviable on rice procured from paddy purchased in the State and the purchase tax has been paid on this paddy in the State shall be reduced by the amount of this purchase tax paid in the State. Thus the turnover liable to tax on the sale of rice (procured from out of the paddy purchased and milled inside the State) to dealers within the State is the difference between the sale value of rice and the purchase value of paddy on which purchase tax has already been paid. And the dealer from whom the rice in question has been purchased herein has paid, if any, only the purchase tax on paddy and this fact has also been admitted by the learned ITP in his submissions available on file. And further as discussed section 15A specially prohibits the refund of this purchase tax on paddy by any dealer and this matter has already been decided by the honourable apex cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntering into merit of the assessment order. In support of their submission learned counsel have placed reliance on a judgment of the Supreme Court rendered in the case of State of Madhya Pradesh (Now Maharashtra) v. Haji Hasan Dada [1966] 17 STC 343 and argued that until the order of assessment is set aside in an appropriate proceedings initiated under the statute, full effect has to be given to such an order. They have also placed reliance on a Division Bench judgment of the Allahabad High Court in the case of Tin Plate Company of India Limited v. Sales Tax Officer [1993] 90 STC 314 and Division Bench judgment of the Rajasthan High Court in the case of Union of India v. State of Rajasthan [1993] 91 STC 284. On the basis of the aforesaid judgments, they have argued that correctness of the declaration made in the assessment order cannot be reconsidered in the refund proceedings. They have then placed reliance on two judgments of the Supreme Court under the Customs and Excise Acts, namely, Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) [2004] 172 ELT 145 and Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. [2000] 120 ELT 285 and argued that once the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority after scrutiny of account and making of inquiries [subject to any adjustment as contemplated by proviso to section 43(1) of the GST Act] is obliged to determine the amount of refund if not determined by the appellate authority under section 39 or by the Revisional Authority under section 40, etc. The provision also postulates the pecuniary limits. The Assessing Authority could exercise the power of refund if the amount of refund is Rs. 10,000 or less than Rs. 10,000. However, in cases where the amount of refund exceeds Rs. 10,000 but does not exceed Rs. 5,00,000 then the Assessing Officer is required to submit the record of the case along with his own recommendation to the Officer in charge of the District. In cases where the amount exceeds Rs. 5,00,000 but does not exceed Rs. 10,00,000 then District in-charge is under obligation to refer the case to Joint Excise and Taxation Commissioner of the Division. In case, the amount of refund exceeds Rs. 10,00,000 then the case is required to be referred by the District in-charge along with his recommendations to the Commissioner for granting prior permission. There is nothing in rule 36 which may go beyond the power to accord approv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hows that an obligation is cast on the Assessing Authority or any other authority to refund to a dealer or any other person the amount of tax or penalty or interest paid by him in excess of the amount due from him under the Act. According to the proviso, it is also a legal obligation casts on the Assessing Authority or any other authority to first adjust the amount to be refunded towards the recovery of any amount due on the date of adjustment from the dealer and then to refund the balance. In cases where refund amount is not paid within the period prescribed, the dealer is also entitled to interest at the prescribed rate. It is, thus, obvious that after the assessment order has been passed under Chapter V, the question of refund would arise thereafter. As to how the refund is to be worked out, it has been made clear by section 43 read with rule 36. Accordingly, the obligations cast on the Assessing Authority or any other sanctioning authority is clearly delineated by section 43 read with rule 36. It would obviously mean that the amount of refund, as worked out in the assessment order, would remain the same without any change and cannot be altered without altering the assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment order by the authority under rule 36 which vests in the appellate authority or the revisional authority. There is ample authority for the proposition that assessment order cannot be tinkered with and have to be respected unless such orders are set aside in appeal (section 39) or revised in exercise of revisional power (section 40). In that regard, reliance may be placed on the judgment of the honourable Supreme Court rendered in the case of Haji Hasan Dada [1966] 17 STC 343. In that case, the assessee was engaged in the business of yarn and was registered under the C.P. and Berar Sales Tax Act, 1947. He was assessed on his turnover from his business and he paid the amount of tax as assessed. Later on, he filed an application before the Assistant Commissioner for refund of certain amount by raising the plea that in the turnover of his business of yarn, the charges concerning dyeing were included which were not taxable under the statute. The aforesaid plea was based on a decision of the Board of Revenue holding that the dyeing charges were not taxable. Accordingly, the honourable Supreme Court held that the order of refund made on the application was unsustainable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Officer making further inquiry. When the notice was issued by the Sales Tax Officer again, the dealer approached the High Court. The claim of the dealer was accepted by the Division Bench. The observations, which are relevant to the controversy in hand, are available in the last two paras, which are extracted as under (page 317): ... After any assessment order is passed by the assessing authority the amount mentioned therein is the amount on the basis of which the recovery could be made or in case any excess amount is deposited, the refund could be claimed. If the case of refund has to be refused it has to based on the assessment order or by an order if it is rectified, or modified in a proceeding under section 21 or 22 of the U.P. Sales Tax Act. It is not the case of the respondent that the said assessment order has been modified in any of those proceedings. In fact, the said assessment order is the final order and in refund proceedings it would not be appropriate for the assessing authority to examine and decide whether the exemption granted by it was final or not. (emphasis Here italicised. added) The aforesaid observations are clearly applicable to the facts of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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