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TMI Blog2015 (12) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... one month. Order of refund was made on 16.12.2012 i.e. after more than three years, for which there is absolutely no explanation and for which the dealer cannot be held guilty for non payment. - concerned Commissioner was at fault in not adhering to the limitation provided by law. It is because of the late making of the order by the concerned Commissioner, the litigation has arisen and, therefore, it would be appropriate for the Government to find out the concerned officer/ Commissioner who has failed in his legal/statutory duty to act according to the provisions of law and proceed against him in accordance with law. By not making refund within time limit prescribed by law i.e. within three months, the Refund Officer has violated law and, therefore, when the department itself made the direct credit as late as on 28.03.2013, the present officer has treated him as defaulter within the meaning of section 30 (2) forgetting that the Refund Officer had himself violated the law. Thus, the Refund Officer as well the concerned Assistant Commissioner both have put the petitioner to a double whammy. It is preposterous, in our opinion, and a retrograde step. In our opinion, section 30 (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the petitioner was liable to pay interest in accordance with the Section 32 of the Act since he defaulted in making payment of tax and that is why the demand in question was projected by the Officer and even the bank account was frozen. In this context, the petition was heard. 4. Mr. Aditya Gohokar, Learned counsel for the petitioner, submitted that the application for refund was made on 11.06.2010 and Section 51 of the Act, which deals with grant of refunds. At it was before the amendment, effective from 01.05.2011, and the application being of 11.06.2010, the concerned Commissioner could have called such additional information from the dealer as he may think within one month of the receipt of the application and to decide the claim for refund within three months from the date of receipt of additional information. According to him, the application was made on 11.06.2010 and since no additional information at all was called within one month from date of the application for refund, the claim was required to be decided within three months from the date of the application i.e. by 10.09.2010. He then submitted that contrary to the said provision, as late as after nine months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 on regular basis. He, therefore, submitted that there was nothing wrong with the officer in demanding interest from the petitioner, in accordance with the provisions of Section 30 (2) of the Act. Since, according to Mr. Patil, the order of refund application can never be speculated inasmuch as it would go even against the petitioner. He, therefore, prayed for dismissal of the present writ petition. CONSIDERATION: 6. Upon hearing learned counsel for the parties, we find that the petitioner had raised a claim for refund for the year 20082009, in respect of which the return was filed on 30.04.2010, which is not in dispute. Having filed return for the year 200809, he filed an application for refund on 11.06.2010 i.e. after almost 1 months. We, therefore, reject the submission that the application for refund was filed late. Once the application was filed on 11.06.2010, the provision of Section 51 of the Act before amendment, stood attracted. Section 51 of the Act reads thus: 51.Grant of refunds: (1) Where a registered dealer has in any return, fresh return or revised return shown any amount to be refundable and has not undertaken to adjust such amount against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation. For the purposes of subclause (i), the expression exporter shall means a registered dealer whose turnover of exports during such period as may be prescribed, is not less than such percentage of the total turnover of his sales as may be prescribed in this behalf. (b) The Commissioner, on receipt of the said application, may require the dealer to furnish such bank guarantee for such amounts from such banks, for such periods and to such authorities as may be prescribed. (4) Save as otherwise provided in this section, the Commissioner shall grant the refund under this section within eighteen months from the end of the month containing the date of the receipt of the application for refund: Provided that, where a dealer has filed an application for refund under this section on or before the 31st March 2011, then, notwithstanding anything contained in subsection (4) as it existed prior to the date of commencement of the Maharashtra Tax Laws (Levy, Amendment and Validation) Act, 2011, the commissioner shall, (a) in respect of the periods ending on or before the 31st March 2010, grant the refund to such dealer on or before the 30th September 2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e receipt of the application, which could not have been done after the expiry of one month. 7. The next provision is that order of refund was requested to be passed within a period of three months of the receipt of the application or receipt of additional information whichever is later. The question of calling additional information after nine months in this case did not arise and, therefore, the Commissioner was under a legal obligation to make order of refund or otherwise on or before 10.09.2010. However, in the present case, order of refund was made on 16.12.2012 i.e. after more than three years, for which there is absolutely no explanation and for which the dealer cannot be held guilty for non payment. 8. Surely, therefore the concerned Commissioner was at fault in not adhering to the limitation provided by law. It is because of the late making of the order by the concerned Commissioner, the litigation has arisen and, therefore, it would be appropriate for the Government to find out the concerned officer/ Commissioner who has failed in his legal/statutory duty to act according to the provisions of law and proceed against him in accordance with law. 9. The next provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t April of the respective year to the date of the payment of tax. The amount of such interest shall be calculated by taking into consideration the amount of, and the date of, such payment, when the payment is made on different dates or in parts or is not made. When, as a result of any order passed under this Act, the said amount of tax is reduced, the interest shall be reduced accordingly and where the said amount is enhanced, 1[the interest on the enhanced amount shall be calculated mutatis-mutandis up to the date of such order]: Provided that, in respect of any of such years, 2[the amount of interest payable] under this subsection shall not exceed the amount of tax found payable for the respective year. (2) A registered dealer who has failed to pay the tax within the time specified by or under this Act, shall be liable to pay by way of simple interest, in addition to the amount of such tax, a sum calculated at the prescribed rate on the amount of such tax for each month or paid thereof after the last date by which he should have paid such tax: Provided that, in relation to the tax payable according to the return, fresh return or as the case may be, fresh return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments pertaining to any period, kept at any place of business of the dealer, or (iii) entry and search of any place of business or any other place where the dealer has kept his accounts, registers, documents pertaining to any period or stock of goods, (b) in consequence of any intimation issued under subsection (7) of section 63, the dealer files one or more returns or, as the case may be, revised returns in respect of the said period, then he shall be liable to pay by way of interest, in addition to the amount of tax, if any, payable as per the return or, as the case may be, revised return, a sum equal to 25 per cent. of the additional tax payable as per the return or, as the case may be, revised return.] [Provided that, interest under this subsection shall not be payable on account of the additional tax liability arising due to nonproduction of declarations or, as the case may be, certificates: Provided further that, if the amount of tax paid as per revised return is less than ten per cent. of the aggregate amount of tax paid as per the original returns, in respect of the corresponding period, then no interest under this subsection shall be payable ..... 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