9911796707
TMI Blog2014 (8) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... - SUPREME COURT OF INDIA) has clearly held that the expression an amount to be "found to be refundable" must be as a result of an adjudication. Under the Explanation I to sub-section (2), the date of refund is relatable to the intimation regarding the preparation of the refund voucher. The decision in Commissioner of Sales Tax, U.P. Vs. Hind Lamps Ltd. has been followed in the case of the assessee itself by the Supreme Court on 4 March 2014 while reversing the judgment of the learned Single Judge of this Court in Lucent Technologies. In view of this clear legal position, the conflict between the views taken by the two Division Benches of this Court in Indodan Milk Products [1973 (7) TMI 90 - ALLAHABAD HIGH COURT] and in Ellora Mechanical Products [2006 (1) TMI 557 - ALLAHABAD HIGH COURT] would stand resolved in terms of the law laid down by the Supreme Court, as noticed above. - Decided in favour of assessee. - Trade Tax Revision No. 27 of 2007, Trade Tax Revision No. 28 of 2007, Trade Tax Revision No. 29 of 2007, Trade Tax Revision No. 30 of 2007 - - - Dated:- 12-8-2014 - Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, CJ, Hon'ble Dilip Gupta And Hon'ble Bharati Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 2004, set aside the orders of the Assistant Commissioner (Assessment) and of the Joint Commissioner (Appeals), and remanded the cases for fresh assessment having due regard to its observations. The orders of the Tribunal were served on the Assessing Authority on 17 August 2004. An amount of about ₹ 62 lacs was recovered during the pendency of the appeals in pursuance of the order passed by the Assessing Authority. Upon remand, fresh orders of assessment were made on 12 April 2005 which were served on 14 May 2005. The assessee had a period of thirty days, until 13 June 2005, to deposit the amount. Details of the amount deposited during the pendency of the appeals and of the tax determined by the Assessing Authority upon remand are tabulated below: Year Amount (in Rs.) deposited during the pendency of the appeals Dates on which amount deposited Amount of tax determined by the A.O. on remand Refund/payment to be made as per order of A.O. 1996-97 20 lacs 19.02.200211.06.2002 16.50 lacs 3.50 lacs (refund) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efunded as aforesaid within three months from the date of order of refund passed by the Assessing Authority or, as the case may be, from the date of receipt by him of the order of refund, if such order is passed by any other competent authority or Court, the dealer shall be entitled to simple interest on such amount at the rate of eighteen per cent per annum from the date of such order or, as the case may be, the date of receipt of such order of refund passed by the Assessing Authority to the date of refund. Explanation I: The date of refund shall be deemed to be the date on which intimation regarding preparation of the refund voucher is sent to the dealer in the manner prescribed. Explanation II: The expression refund includes any adjustment under the proviso to sub-section (1). (3) Notwithstanding any judgement, decree or order of any court or authority no refund shall be allowed of any tax or fee due under this Act on the turnover of sales or purchases or both, as the case may be, admitted by the dealer in the returns filed by him or at any stage in any proceedings under this Act. Explanation I: The date of refund shall be deemed to be the date on which in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows, noticing the legislative amendment in Section 29 of the Act of 1948: It will thus seen that whereas under sub-section (2) as it stood till its substitution with effect from 1st April, 1979, the liability to pay interest on the amount refundable was to accrue if it was not refunded within a period of six months from the date of the order by virtue of which the amount had to be refunded, the substituted section provided that the interest at a much higher rate, that is, at the rate of 18% was to accrue if the amount found refundable was not actually refunded within three months from the date of order of refund passed by the Assessing Authority or, as the case may be from the date of receipt by him of the order of refund if such order was passed by any other competent authority or Court. The change in the phraseology of the sub-section from, the date of the order by virtue of which the amount is to be refunded as it existed in sub-section (2) of Section 29 prior to its amendment in 1979, to the date of order of refund passed by the Assessing Authority or, as the case may be, from the date of the receipt by him of the order of the refund if such order is passed by any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt. It would not accrue merely because eventually some refund becomes due in consequence of the order of the High Court after the directions contained therein are complied with the Assessing Authority. (Emphasis supplied). The Division Bench held that so far as the authorities constituted under Sections 9 and 10 of the Sales Tax Act are concerned, there are specific provisions in the Act requiring them, in suitable cases, to make an order directing the refund of the excess amount of tax or other amount paid by a dealer. However, there is no such express provision requiring the assessing authority to pass a formal order of refund in case it was found that the assessee had paid an amount more than what has actually been assessed. Hence, in the view of the Division Bench, the date of the order of refund by the Assessing Authority is the date on which the interest on the amount to be refunded would run if it is not refunded within three months of the date of the assessment order. In 2004, a learned Single Judge in Hind Lamps Limited Vs. Commissioner of Sales Tax5, considered the provisions of Section 29 of the Act of 1948. In that case, the assessee had filed appeals against as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment. Thereupon, the assessee made an application seeking a refund of the amount which had been deposited pursuant to the order of this Court. The Division Bench agreed with the view of the Single Judge in Hind Lamps and held that under Section 29 (1), a duty is cast on the Assessing Authority to refund to a dealer, tax paid in excess of the amount due. In the view of the Division Bench, until such time that an assessment is not made, any amount due under the Act would be referable only to the admitted tax liability and any amount which is deposited in excess of the admitted tax liability upon interim orders passed by the appellate authority or by this Court, would not be an amount due in the absence of a determination of liability either by an assessment or otherwise. After the judgment of the Division Bench in Ellora Mechanical Products, which was rendered on 13 June 2006, a matter pertaining to the revision applicant in these proceedings came up before a learned Single Judge in Lucent Technologies Pvt. Ltd. Vs. Commissioner of Trade Tax6. In that case, an order of assessment was made under the Act of 1948. The assessee disputed the tax liability on the ground that it was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found any amount to be refundable. ... (Emphasis supplied). Again, in the view of the Supreme Court: The expression used is found to be refundable . In other words, it must be as a result of adjudication. The amount has to be found to be refundable. In the instant case, there is no such adjudication. Even otherwise, the power of adjustment lies with the authority under the Statute. While granting refund, he has to first find out whether there is any amount which has to be adjusted against tax or other amounts outstanding against the dealer under the Act or the Central Act and the balance has to be refunded. This power of adjustment lies only with the authority under the Statute. The dealer cannot make any adjustment on his own, and not certainly under the proviso to sub-section (1) of Section 29 of the Act as has been held by the High Court. The Explanation-I makes the position further clear that the date of refund shall be deemed to be the date on which first intimation regarding preparation of the refund voucher is sent to the dealer in the prescribed manner. Obviously, therefore, date of refund is relatable to the intimation regarding the preparation of the refund vouc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Supreme Court in Commissioner of Sales Tax, U.P. Vs. Hind Lamps Ltd. (supra) has clearly held that the expression an amount to be found to be refundable must be as a result of an adjudication. Under the Explanation I to sub-section (2), the date of refund is relatable to the intimation regarding the preparation of the refund voucher. The matter, insofar as the present assessee is concerned, stands concluded by a decision of the Supreme Court which arose from the judgment of the learned Single Judge in Lucent Technologies. In the case of the present assessee, the learned Single Judge had, following the view of a Single Judge in Hind Lamps and of the Division Bench in Ellora Mechanical Products directed a refund with interest of an amount which had been recovered in pursuance of an order of assessment during the pendency of an appeal, other than the admitted tax, following an order of remand of the appellate authority. The judgment of the learned Single Judge was carried in appeal by the revenue to the Supreme Court. By a judgment dated 4 March 2014 in Commissioner, Trade Tax, U.P. Vs. Lucent Technologies Private Limited8, the Supreme Court allowed the appeal filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
