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TMI Blog2015 (8) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... e of deposit – Impugned order modified by directing respondents to pay interest on amounts deposited from dates on which deposits were made till payment – Petition disposed of –Decided in favour of Petitioner. - CWP No. 16213-2014 - - - Dated:- 7-8-2015 - S. J. Vazifdar, ACJ And G. S. Sandhawalia, JJ. For the Appellant : Mr Sandeep Goyal, Adv For the Respondent : Ms Mamta Singla Talwar, Deputy Adv. General, Haryana ORDER S. J. Vazifdar, ACJ. (Oral) The petitioner has sought a writ of mandamus directing the respondents to pay the interest on the tax collected by them allegedly without authority of law and a writ of certiorari quashing an order dated 22.05.2014 (Annexure P12) passed by the Haryana Tax Tribunal and all other orders passed by the other authorities in so far as the petitioner's claim has not been allowed in full. 2. The assessment order dated 31.08.1994 was made in respect of the assessment year 1989-1990 under the Haryana General Sales Tax Act, 1973 (hereinafter referred to as the HGST Act) and under the Central Sales Tax Act, 1956 raising a tax demand of ₹ 14,17,071/- on the ground that the goods which had been purchased from with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order of the Tribunal setting aside the assessment order creating the additional demand of tax. Contending that the amount was refunded on 04.01.2010, the petitioner claimed interest from 05.12.2008 to 04.01.2010. The Tribunal, however, held that the assessing authority should have issued the refund voucher alongwith the fresh assessment order dated 28.05.2009 in view of Rule 35(1)(a). The Tribunal held that the petitioner was entitled to interest on the delayed payment of refund with effect from 28.05.2009 till the date of refund i.e. 04.01.2010. The Tribunal relied upon the judgement of this Court in the case of M/s Khem Ram Devi Sahai Vs State of Haryana, [2004] 23 PHT 330 (P H). 5. The question, therefore, is whether the petitioner is entitled to interest from the dates on which the petitioner paid the amounts to the respondents as a condition precedent to the maintainability of the appeal. The respondents contend that the provisions of the HGST Act and the Rules made thereunder do not entitle an assessee to interest in such circumstances. 6. Sections 25(5), 39(5) and 43 of the HGST Act in so far as they are relevant read as under:- 25(5) If any dealer fails t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Haryana General Sales Tax Rules, 1975 in so far as they are relevant read as under:- 35 1(a) While framing the assessment of a dealer, the assessing authority shall, after such scrutiny of its record and after making such enquiries as it considers necessary, determine the amount paid by him, in excess, if any, and thereafter direct the refund of such amount as may remain after deducting any amount due from him. The assessing authority shall then issue to the dealer at his option a refund payment in form S.T.R. 34 prescribed under the Punjab Subsidiary Treasury Rules or refund adjustment order in form S.T. 34 and send it alongwith the assessment order.b) Where a refund of any amount paid by any dealer or other person becomes payable as a result of the order of any appellate or revisional authority or any court and the same is not the subject-matter of any further proceedings, the dealer or such other person shall make an application to the assessing authority concerned alongwith the original order or the copy thereof duly attested by the dealer, which constitutes the basis for refund, the assessing authority shall order the refund of excess amount in the manner specified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities have had the benefit thereof from the date of payment. If the appeal succeeds, the assessee is entitled to a refund of such an amount as may be directed by the Appellate Authority. Absent any statutory bar, there is no justification for denying a successful assessee interest upon the amount(s) to be refunded for the period during which the revenue had the benefit thereof. The revenue suffers no loss thereby for it has enjoyed the benefit of the money during this period. It has enjoyed the benefit of the money that it was never entitled to. 9. In equity, the petitioner's claim is established. The question is whether the claim is barred by any provision of law. We think not. The question also is whether interest is payable in law. It is, in view of the judgements of this Court, binding on us. We, therefore, need look no further while granting interest. 10. Before referring to the binding judgements supporting the claim for interest, we will deal with the respondents' contention against the grant thereof. 11. Ms. Mamta Singla Talwar, learned Deputy Advocate General, Haryana submitted that there is an implied bar on the payment of interest in view of sub se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We are invited to exercise our extra-ordinary jurisdiction under Article 226 of the Constitution of India and not jurisdiction in any other proceeding such as in a Civil Suit or even in arbitration proceedings. The judgements of this Court in similar matters have upheld the right of assesses to interest in such circumstances. 13. Mr. Goyal relied upon the judgement of a Division Bench of this Court in M/s Sonu Rice Mills, Ellanabad, Sirsa Vs State of Haryana and others, STI 2000 PB HN (High Court) 13. The appeal filed by the petitioner against the assessment was allowed on 11.06.1999 with the direction that the amount paid by the petitioner to the department be refunded immediately. After waiting for four months, the petitioner therein submitted an application to the assessing authority for refund of the amount. The amount was, however, not refunded. Following a judgement dated 05.09.1994 passed by the Division Bench of this Court in CWP-2372-1994 titled as Sagar Motor Company Vs State of Haryana and another, the Division Bench directed the respondents to refund the amount with interest at 12% per annum from the date of the deposit till the date of payment. 14. In Sagar Mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, on acceptance of appeal, the amount deposited was not refunded. Since the representations of the petitioner yielded no result, the petitioner approached the High Court. The department had taken the stand that the appellate authority while cancelling the penalty on November 26, 1997 had remanded the matter to the Assessing Officer for fresh consideration. The Assessing Officer vide his order dated June 25, 2001, had again imposed the penalty of ₹ 50,000/- and, thus, it was contended that no refund of interest was due to the petitioner in that writ petition. This contention was negatived by this Court on the ground that the dealer had become entitled to refund on November 26, 1997 when the penalty had been cancelled and matter remanded. It was further held that the subsequent order dated June 25, 2001 could not impose penalty from a retrospective date. In this case, the petitioner restricted his claim for interest from the date of the assessment order under which he was entitled to the refund. The petitioner did not claim interest from the date of the deposit. The Division Bench granted interest for the period claimed, but did not hold that interest is not payabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Guj) . 19. Ms. Talwar relied upon the following order of the Supreme Court in Commissioner of Central Excise, Hyderabad Vs ITC Limited, 2005 (13) SCC 689 :- Order 1. The issue in this appeal and in several other appeals is whether the predeposit made as a precondition for the hearing of the appeal under the Central Excise Tariff Act, 1985 was, on the assessee being ultimately successful, refundable to the assessee with interest. The learned Solicitor General has taken instructions and has stated before this Court that the Central Board of Excise and Customs proposes to issue a circular in connection with the payment of interest on all such predeposits. A draft copy of the proposed circular has been handed over to this Court. Having regard to the contents of the draft circular we direct compliance with the final order impugned before us and payment of interest in terms of the draft circular. The draft circular shall be appended to and the contents form part of this order. The appeal is disposed of. In view of this order any judgement of any High Court holding to the contrary will no longer be good law. 20. That case was under the Central Excise Tariff Act, 1985. The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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