9911796707
TMI Blog2008 (5) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... gal Sales Tax Act, 1994 (in short, the 1994 Act ). For the quarter ending March 31, 1997 under the 1994 Act, the applicantcompany paid Rs. 4,43,12,444 whereas the actual liability for the said quarter was Rs. 3,90,69,989.39. There was, thus, an excess payment of Rs. 52,42,464.61. The applicant, while submitting the return for the said quarter showing payment of Rs. 4,43,12,444, drew it to the notice of the Assistant Commissioner of Commercial Taxes, Corporate Division (in short, the ACCT/CD ) that this excess payment was made as per his request and it sought special instruction so that the excess amount paid for the quarter ending on March 31, 1997 could be adjusted against the dues commencing from April 1, 1997. The assessment for the four quarters ending on March 31, 1997 was completed on June 30, 1999 showing an excess payment of Rs. 33,91,227.44. No refund adjustment order was issued along with the demand notice in terms of the provision of section 60 of the 1994 Act read with rule 181(4) of the West Bengal Sales Tax Rules, 1995 (in short, the 1995 Rules ). Being aggrieved by the said assessment order dated June 30, 1999, the applicant-company preferred an appeal before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid in excess in March 1997 against the admitted tax of Rs. 4,15,22,145.04 for the quarter ending on June 30, 2007. This fact was not taken into consideration by the assessing authority at the time of making the assessment. This assessment order was challenged by the applicant before the DCCT/CD. The DCCT/CD in his order dated August 29, 2005 computed the liability of the applicant-company towards tax, surcharge and penalty payable at Rs. 15,37,57,214 and liability of interest at Rs. 26,86,080 total of which comes to Rs. 15,64,43,294. The amount paid was shown at Rs. 15,40,13,133. After giving credit of the amount paid, liability of the applicant-company was finally determined at Rs. 24,30,164. While disposing of the appeal petition, the DCCT/CD considered the points raised before him by the applicant regarding the payment alleged to have been made in excess for the quarters ending March 31, 1997 adjusted against the dues for quarter ending on June 30, 1998 but observed since there is no provision in the WBST Act, 1994 to adjust any excess payment of tax shown in demand notices of previous year in the current return, the learned ACCT/CD was justified to neglect the excess paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement has been submitted by the DCCT/CD on March 24, 2008 showing the outstanding dues of the applicant-company as under: 1997-98 Rs. 24,26,164 (Interest Rs. 24,26,164) 2001-02 Rs. l4,93,790 (Tax Rs. l4,76,748 + Interest Rs. 14,042 + Penalty Rs. 2,000) 2003-04 Rs. 21,85,367 (Tax Rs. 21,85,367) 2004-05 Rs. 39,72,799 (Tax Rs. 39,60,649 + Interest Rs. 7,130 + Penalty Rs. 5,000). It was submitted by the applicant that it would prefer appeal and file application for stay within the limit of forty five days from the date of receipt of the order, (i.e., on March 20, 2008) and as regards the dues for the years 2003-04 and 2004-05, appeal along with stay application has been preferred before the Additional CCT/WB which is lying pending. Dr. D Pal, learned senior advocate, appearing along with Sri Abhratosh Majumder, Advocate and Sri Abhra Majumder, advocate, drew our attention to the provision of section 60 of the 1994 Act and sub-rule (4) of rule 181 of the 1995 Rules. Sub-section (1) of section 60 reads, the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration the predicament faced by the applicant due to non-issue of RAO or non-adjustment of the excess amount paid by the applicant for the four quarters ending on March 31, 1997 against the dues pertaining to the four quarters ending on March 31, 1998. The concerned authorities delayed the issue of RAO and at the same time, it levied interest on the alleged ground that the applicant made short-payment of taxes in subsequent year. It was also brought to the notice of this Tribunal that till today no RAO has been issued. It was contended by Dr. Pal, learned senior advocate, that while section 60 provides for adjustment of excess payment from the amount of tax, penalty or interest due in respect of other periods, but, rule 181(4) is silent as to how the excess tax paid by a dealer could be adjusted by the assessing authority against tax liability arising from assessment for future period and hence, it was his contention that subordinate legislation which is silent on the manner of adjustment of the excess tax paid by a dealer against tax liability arising from assessment for future period, cannot be construed in a manner so as to defeat the legislative intent which is explicit in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded the matter back to the appellate authority for further hearing. He drew our attention to the fact that the revision petition was filed before the Additional CCT/WB on December 15, 2006 whereas the instant revision petition was filed before this Tribunal on November 16, 2007. This fact was not brought to the notice of this Tribunal before it was pointed out. It was, however, submitted by Dr. Pal, the learned senior advocate, that the applicant had submitted an application before the Additional CCT/WB dated January 23, 2008 intimating him regarding withdrawal of the revision petition filed against the appellate order dated September 26, 2006. The learned advocate further submitted that the applicant would accept the appellate order dated September 26, 2006 as final and would not press its demand for enhancement of the excess amount found on giving of the said revisional order passed by the Additional CCT/ WB. Keeping in mind this submission of the applicant, learned State Representative contended that it cannot be denied that the applicant was agitating at two different forums on the same issue simultaneously. Whatever may be the compelling circumstances for pursuing the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceed to analyze the undisputed sequence of events and the legal obligations of the Revenue and the dealer. During the assessment year 1996-97 (ending on March 31, 1997), the petitioner claimed to have paid an excess amount of Rs. 52,42,464.61. For the next year, i.e., 1997-98 (ending on March 31, 1998) last date for filing return of the last quarter was April 30, 1998. In the return filed for the year 1997-98, the petitioner itself adjusted excess amount paid during the previous year against the tax payable according to the return and separately requested the Assistant Commissioner of Commercial Taxes, Corporate Division to issue special order/instruction permitting such adjustment. There could not be any doubt or dispute that excess amount paid as tax under the provision of the 1994 Act was lying with the Revenue. The assessment for the year 1996-97 was completed on June 30, 1999 showing an excess payment of Rs. 33,91,227.44. Demand notice was issued without RAO. Plea of Mr. Nath, learned State Representative, is that RAO could not be issued as the dealer filed appeal and assessment order did not reach finality cannot be accepted for three reasons. First, at the time of issui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount against the unpaid amount of admitted tax and interest, if any, at the time of issuing demand notice and RAO and asked for balance unpaid amount, if any, not objected to by the assessee. It prima facie appears to us that under the provision of rule 181(4), adjustment was possible and permissible. According to the Revenue authorities, excess amount was ultimately found to be Rs. 41,07,477 although the petitioner disputes the said amount and has preferred a revision. Dr. Pal, learned senior advocate, submitted that if the dispute is resolved, the petitioner would accept the said amount as final and withdraw the revision. Assessment dated June 30, 1999 was remanded back by the DCCT/CD by his order dated July 17, 2002. The excess payment for the four quarters ending on March 31, 1997 stood determined at Rs. 33,57,613. We are of the view that as per provision of section 34 of the 1994 Act, the authorities were liable to pay interest on the aforesaid amount so determined from August 1, 2002 (first day of the month following the date of such order and on the balance amount, i.e., Rs. 8,02,864 (Rs. 41,60,277 Rs. 33,57,613) from October 1, 2006 (first day of the month followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue merrily held the excess amount from May 1, 1997 and despite success before the assessing authority and appellate authority denied interest up to July 31, 2004, i.e., for five years after original assessment order dated June 30, 1999. Legislature could not have intended to create such unjust situation in favour of the Revenue and in fact did not do so by using the expression which arises out of an order under sections 79 to 83 of the Act . Submission made by Mr. Nath cannot be accepted in view of the language of section 34 and enormity of injustice likely to be suffered by taxpayers. If we calculate the interest in respect of those amounts up to April 30, 2008, it will be more than Rs. 24,00,000. But leaving aside the legal provision of section 34, it should be kept in mind that the Revenue authorities withheld this amount at least from June 30, 1999 when the excess amount was initially determined by way of an assessment. If we direct the respondent-authorities to pay interest even at a very modest rate of six per cent per annum for the period from July 1999 to July 31, 2002, the total liability of the Revenue would be much more than the interest imposed by the Revenue on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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