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TMI Blog2019 (3) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... y receives an order from any appellate or revisional authority or any officer under subsection (5) of section 47, to refund tax or penalty to a dealer, he must comply with that - But the assessing authority has the power to adjust the amount due to be refunded towards the recovery of any amount due, on the date of adjustment, from the dealer. If the assessing authority delays refund without justification, the dealer may earn interest @10% p.a. Was the petitioner due to pay any amount to the Department “on the date of adjustment”? - Held that:- Section 31(1) declares that every dealer liable to pay tax for any return period shall pay the tax within such period as may be prescribed. Then, subsection (3) holds that the adjustment must be of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... happened. So the petitioner claims to have sent the Ext.P2 series of reminders. On 14.06.2018, the assessing officer, in terms of the Ext.P4 hearing notice, heard the petitioner. 3. For the AY 2016-17, the petitioner on 14.02.2018 requested the authorities to let it revise its returns. For this, it has relied on the Ext.P6 judgment concerning its previous assessment year. When the Ext.P5 application for revision was pending, the assessing officer issued the Ext.P7 notice dated 05.04.2018 under Section 25(1) of the Act, asserting that certain turnover had escaped assessment. After receiving the Ext.P8 reply, dated 04.05.2018, the assessing officer issued an additional notice, in response to which he received the Ext.P9 reply. 4. Eventu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning that the Ext.P11 order for the assessment year 2007-08 was passed belatedly, Ms. Binoy also contends, first, that the assessing officer ought to have quantified the amount to be refunded. Then he must have allowed the petitioner to have the refund, instead of prematurely adjusting it for the assessment year 2016-17. She thus insists that the assessing authority has acted in haste, for, by then, the petitioner still had the time to challenge the Ext.P10, the best-judgment assessment. 9. To elaborate, Ms. Binoy submits that, in terms of Section 89(3) of the Act, the amount must have fallen actually due by the date the assessing officer adjusted the tax. To support this contention, she has drawn my attention to Section 31(2) of the KVA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it was because of the petitioner's own conduct, as it often sought time to produce documents. 14. On the adjustment effected in the Ext.P11, Dr. James submits that the assessing officer passed both the Exts.P10 and P11; thus he knew what was due from the petitioner. Under those circumstances, he has passed the orders of adjustment. So, on neither count can the orders be found fault with. Reply: 15. In reply, Ms. Binoy, the petitioner's counsel, has drawn my attention to the respondent's counter; she contends that the Department itself has admitted that the delay was due to administrative reasons, including that the incumbent assessing officer has assumed charge recently. 16. Heard Ms. Surya Binoy, the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay should not be less than fifteen days from the day the dealer receives the notice. So the petitioner contends that, with the instantaneous adjustment, it has lost the chance of paying the tax later. Of course, it also argues that had it preferred an appeal, it would have got off by paying 20% of the demanded tax and would have had all recovery stayed until the appeal was disposed of. 20. Now, we will see what Section 89 mandates. And it reads: 89. Refunds.- (1) When an assessing authority finds, on completion of annual assessment, that a dealer has paid tax in excess of what is due from him, it shall refund the excess to the dealer. ( 2) When an assessing authority receives an order from any appellate or revisiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y with that. 22. But the assessing authority has the power to adjust the amount due to be refunded towards the recovery of any amount due, on the date of adjustment, from the dealer. If the assessing authority delays refund without justification, the dealer may earn interest @10% p.a. 23. The question here is: Was the petitioner due to pay any amount to the Department on the date of adjustment ? 24. The petitioner, indeed, asserts that its liability under Section 39(3) of the Act-that is, its obligation to pay tax- materialises only 15 days after its receiving a notice from the Department. The assessing authority s adjusting the amount, the petitioner further contends, before that eventuality is illegal. 25. Attractive as the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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