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TMI Blog2014 (4) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the respondent No.3 to refund the amount of Rs.1,29,32,903/- which was found to have been deposited by the petitioner in excess of the tax due and which was found to be refundable in the assessment order for the assessment years 2006-2007; (ii) that a suitable writ, order or direction in the nature of mandamus or direction be issued directing the respondent Nos. 2 and 5 not to insist on deduction of TDS while making future payment to the petitioner in view of the order dated 18.01.2011 passed under section 34 (5) of U.P. VAT Act by the Deputy Commissioner, Commercial Taxes, Noida; (iii) that a suitable writ, order or direction in the nature of writ of certiorari be issued quashing the letter dated 20.01.2011 sent by Deputy Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the sub contractors. The Deputy Commissioner, Commercial Tax, Sector-2, Noida by his letter dated 1.2.2011 had asked NHAI to make the deductions as per the second proviso to Section 34 (1). The NHAI was liable to make deductions of TDS only in respect of differential amount after deducting the amount on which the contractors had already made deductions from the sub contractors. 4. Shri Bharat Ji Agarwal, submits that in pursuance to the assessment order of the assessment year 2006-07 dated 31.8.2010, and the assessment order for the assessment year 2007-08 dated 23.3.2010, a total income of Rs.1,29,32,903/- was refundable to the petitioner, whereas the department has refunded only Rs.1,04,76,208/-, thus leaving a balance of Rs.24,56,694 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled before respondent no.1. Since the amount of refund as also the interest has been unnecessarily withheld by the respondents and the principal amount was only refunded, when the petitioner approached this Court by means of the present writ petition, the respondents have also exposed themselves with the liability for payment of exemplary cost, which we assess at Rs. 10,000/- as cost shall also be paid along with the interest within the same period." 6. Shri Bharat Ji Agarwal has also relied on a Circular issued by the Commissioner, Commercial Tax, UP dated 22.5.2004, providing for payment of interest on the amount, which is deductible and refundable in accordance with the provisions of the Act, by the authorities within one month, so tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.10,98,275.00 and there was further demand of Rs.5,29,292.00 as per the order dated 07.3.2011 under Section 4-B (5) of the UP Trade Tax Act, 1948. Thus after adjusting these demands the refund of Rs.82,02,206.00 has been made to the petitioner. Thus total amount of Rs.1,04,76,208/- has now been refunded to the petitioner. As regards the averments made by the petitioner as to why the Deputy Commissioner, Commercial Taxes, Sector-2, Jhansi has asked NHAI to make deductions on the total amount of the payments without considering the second proviso to sub section 34(1), the respondent no.3 cannot make any comments." 8. Shri C.B. Tripathi also points out that the petitioner has neither demanded interest, nor has made any prayers in this writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is not refunded within 30 days from the order of refund passed by the Assessing Authority or where the order giving rise to refund was passed by any other authority or court from the receipt of said order by the Assessing Authority of due processing the dealer shall be entitled to simple interest @ 12% from the date of such order is passed by the Assessing Authority or from the receipt of the order giving rise to refund passed by any other authority or court till the date of refund is made. 12. We are of the view that sub section (4) of Section 40 is applicable to the extent of the amount for which a request for adjustment has been made and has been adjusted from the future liabilities. The amount, which was found refundable and has be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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