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TMI Blog2019 (10) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case, fortunately there is no need to give any strained meaning to the provisions in Rule 30 so as to make it conform to the provisions in section 33(2) of the said Act. The provisions in Rule 30 of the said Rules as they stand do not detract anything from section 33(2) of the said Act. In fact, both Rule 30 of the said Rules and section 33(2) of the said Act, operate in their respective fields. It is reasonable to proceed on the basis that 90 days time limit provided in section 33(2) of the said Act is the time limit within which the appropriate assessing authorities must obtain sanction in terms of Rule 30 of the said Rules. However, if for any reason such sanction is not obtained within the period of 90 days from the date of order of refund made under Section 29 of the said Act or within a period of 90 days from the date of receipt of application for refund under section 10(3) of the said Act, the appropriate assessing authority cannot avoid liability or payment of simple interest at the rate of 8% per annum on specious plea that such liability commences only from the date of expiry of 90 days from the date of sanction order under Rule 30 of the said Rules. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Commercial Tax Officer (CTO), made an Assessment Order under Section 29 of the said Act on 29th March, 2011, determining that the amount of ₹ 1,92,91,143/- was refundable to the Petitioner. (C) Since the refund order was not actually implemented for a considerable period of time, the Petitioner addressed communications/representations/reminders dated 18th March, 2013, 3rd March, 2014, 12th March, 2014, 26th March, 2014, 30th April, 2014, 31st January, 2015, 14th April, 2015, amongst others, seeking actual refund. (D) Ultimately, the Petitioner instituted a Writ Petition No.940 of 2015 in this Court, which was disposed of vide order dated 28th January, 2016, directing the CTO to take a decision in the matter, in accordance with law, within a period of three months. (E) In pursuance of the aforesaid direction, the CTO, applied for sanction under Rule 30 of the Goa Value Added Tax Rules, 2005 (the said Rules), which sanction was granted on 1st February, 2016, for an amount, however, of only ₹ 81,19,244/-. This was followed by a refund voucher dated 20th February, 2016 in terms of which the amount of ₹ 81,19,244/- was actually refunded to the Petitioner. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired on 29th June, 2011 and the period for refund in terms of Section 10(3) of the said Act expired on 24th April, 2008 and 18th July, 2008 respectively. Therefore, he submits that the interest at the statutory rate became payable from the said date and not from the date of sanction order, which, according to Mr. Usgaonkar, is only an administrative order, unconnected with the issue of payment of interest under Section 33(2) of the said Act. 6. Mr. Usgaonkar submits that the amount of ₹ 8,51,594.88 has been incorrectly withheld by the Respondents though in terms of law, the Petitioner, was very much entitled to this amount, being an exporter for the purpose of the said Act. Mr. Usgaonkar submits that in fact, clause 9 of the Goa Value Added Tax Deferment-cum-Net Present Value Compulsory Payment Scheme 2005 (the said Scheme) was quite clear on this aspect. In any case, the Scheme was amended in the year 2016, but with retrospective effect from 1st April, 2005, to clarify that the Scheme also covers to the extent indicated the sales beyond the State but within the territory of India. Mr. Usgaonkar submits that the relief in terms of prayer clause (c) of the petition is also du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory provisions as they are. He submits that there is no scope for any intendment or implications. He submits that such issue, in particular, can never be decided on the basis of any equitable considerations because there is no equity about tax. 10. In so far as the prayer clause (c) of the petition is concerned, Mr. Pangam submits that the issue is in fact pending adjudication before the Authorities under the said Act. He therefore submits that such issue may not be decided by this Court directly for the first time, in the present petition. 11. For all the aforesaid reasons, Mr. Pangam submits that this petition is liable to be dismissed. 12. The rival contentions now fall for our determination. 13. As noted earlier, the main issue which arises for determination in this petition is the date from which the simple interest at the rate of 8% per annum, in terms of Section 33(2) of the said Act becomes payable on the amount refundable under the provisions of the said Act ? 14. The Petitioner, in the present petition, contends that the interest, in terms of Section 33(2)(a) of the said Act becomes payable upon refund amount of ₹ 52,36,030.69 from 29th June, 2011 i.e. up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to believe that a person will become liable to pay tax under this Act but is unlikely to pay the amount due; or the Commissioner may make an assessment of the amount of tax payable by the person to the best of his judgment after giving him an opportunity of being heard. Section 29(3) of the said Act provides for the period of limitation within which the assessment is to be undertaken and completed. There are at least four provisos to Section 29(3) of the said Act, out of which first three proviso, are really not relevant for appreciating the issues which arise in the present petition. However, the fourth proviso to Section 29(3) of the said Act provides that where a registered dealer who has filed all the returns for a particular financial year within prescribed time limit, claiming for that financial year,in the said returns, a refund of any amount of tax paid in excess of the amount due from him under the said Act or unduly paid by him and/or for excess of input tax credit over output tax payable under the said Act but remained unassessed beyond the limitation period specified in the said Act, the Commissioner shall upon an application made by the dealer claiming refund of tax o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder is made by any authority; or (b) the date of receipt of the order by the authority, if such order is made by any other authority; or (c) of the date of receipt of application for refund under sub-section (3) of section 10, the authority shall pay such person simple interest at the rate of eight percent per annum on the said amount from the day immediately following the day of expiry of the said ninety days to the day of refund: Provided that the interest calculable shall be on the balance of the amount remaining after adjusting out of the refundable amount any tax, penalty or other amount due under this Act, for any year by the person on the date from which such interest is calculable. (Emphasis supplied ) 22. Section 34 of the said Act deals with provisional refund of tax in special circumstances. This provision enables a registered dealer, in special circumstances to apply for provisional refund pending audit and investigation to establish the correctness of the claim and consequent assessment, if any. This provision provides that subject to the provisions of sub-section(3), the Commissioner may require the dealer to furnish irrevocable bank guarantee for the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally deals with the aspect of "refunds" is quite relevant to the issue raised in the present petition, and therefore, the same is transcribed herein below for convenience of reference. "30. Refunds.- (1) When any order of assessment under section 29 or re-assessment under section 31 or order of appeal under section 35 or under section 36 or under section 37 a review by Tribunal or under section 38 a revision by High Court or revision by Commissioner or rectification under section 41 results in input tax credit exceeding the tax liability whereby dealer is entitled for refund of tax, penalty or interest paid in excess of the amount due from him and the amount to be refunded does not exceed ₹ 50,000/-, the Appropriate Assessing Authority shall forthwith proceed to refund such amount to the person concerned by issue of refund voucher in Form VAT-XII for being credited to the declared bank account of the dealer. However, before proceeding to refund such amount, the Appropriate Assessing Authority shall firstly verify that any amount being due by the dealer is left unpaid by him, in such case, shall adjust the amount to be refunded by issue of an order in Form VAT-XVI, towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... text to suggest to the contrary; secondly, in a taxing statute, regard must be held to the strict letter of law; thirdly a fiscal statute will have to be interpreted on the basis of language therein and not de hors the same; fourthly, no words can be added or ignored, and only the language of statute is to be considered for ascertaining the proper meaning and intent of the Legislation. This means that the intent of the Legislation must be gathered from language used in the statute. There is no scope of any implication in such matters; fifthly, so called equitable construction of words of fiscal statute, is impermissible. There is no equity about tax; sixthly, if two views are reasonably possible in a taxing statute, the view which favours the assessee must be preferred. 27. In the precise context of the provisions of the Central Excise Act, 1944 dealing with the claim of interest on refund, the Apex Court in the case of Ranbaxy Laboratories Ltd. Vs Union of India 2011(10) SCC 292, has held that fiscal legislation has to be construed strictly and one has to look merely at what is said in the relevant provision; there is nothing to be read in; nothing to be implied and there is no s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if such amount is not refunded within a period of 90 days from the date of order of refund, or in case of an exporter, within 90 days from the date of receipt of application for refund under Section 10(3) of the said Act. 32. Section 33(2) of the said Act does not refer to interest becoming payable upon 90 days from the date of "sanction" under Rule 30 of the said Rules. Section 33(2) does not say that the interest will be payable if refundable amounts are not refunded within 90 days from the date of making any order under the said Rules. Rather, Section 33(2)(a), clearly refers to order made under the provisions of "this Act". Similarly, Section 33(2)(c) refers to the date of receipt of application under Section 10(3) of the said Act and provides that the interest will become payable, within 90 days from the date of such order under this Act or from the date of receipt of such application under Section 10(3) of the said Act, the amount is not actually refunded. 33. Having regard to the principles of interpretation of taxing statutes, it will not be proper to read into the provisions of Section 33(2) of the said Act, some different date for commencement of period of limitation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e stretched to suggest that the same will operate to extend the period of limitation prescribed in Section 33(2) of the said Act, particularly when the provisions in Section 33(2) of the said Act are quite clear and unambiguous. 36. The revenue contends that unless and until there is sanction or approval under Rule 30 of the said Rules, the liability to make refunds, does not crystallize. The revenue further contends that unless and until the liability to refund crystallizes, there is no question of any 90 days period under Section 33(2) of the said Act, commencing or beginning to run. Therefore, the revenue contends that it would be inequitable to require payment of any interest on refunds, when the amount of refund is yet to be crystallized. In the alternate, the revenue contends merely because there may be some delay between the making of refund order under the said Act or the date of receipt of application for refund under Section 10(3) of the said Act and the date upon which sanction is obtained under Rule 30 of the said Rules, no interest can be made payable, without examining whether the dealers or the exporters were themselves responsible for the delay. The revenue contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Act. Thus, where the Legislature intended exclusion of the period attributable to any delay on the part of the dealer, the legislature has made specific provisions to that effect. No such provision is made either in Section 33 of the said Act or in Rule 30 of the said Rules. Therefore, by invoking so called equitable considerations, the Respondents cannot deprive the Petitioner, interest in terms of Section 33(2) of the said Act, where refund is not actually made within the period of limitation prescribed under Section 33(2) of the said Act. 40. The provisions of Section 33(2) of the said Act, in fact enable the Respondents to retain excess amounts paid by a dealer or an exporter from the date of actual deposit of such excess amount in the treasury till the expiry of period of 90 days from the date of the refund order made under any of the provisions of the said Act or from the date of the receipt of the application for refund under Section 10(3) of the said Act, without liability of payment of interest thereof. Therefore, even though the revenue may have utilized the excess amount from the date of its deposit in treasury and its actual refund, by virtue of provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only the balance is to be thereafter refunded. 43. Rule 30(2) of the said Rules relates to refund which exceed ₹ 50,000/- but not ₹ 2 lakh. Here, the appropriate assessing authority must obtain the sanction of the Assistant Commissioner in charge of or having the jurisdiction over the wards, before proceeding to refund such amount. In cases where the Asst. Commissioner is himself appropriate assessing authority the sanction for refund must be obtained from Addl. Commissioner of the commercial taxes. For the said purpose, he shall submit the case record of the dealer to the Asst. commissioner of commercial taxes stating full facts which has originated the refund. The Asst. Commissioner of commercial taxes upon examining the case shall order the sanction of refund and appropriate assessing authority shall refund "forthwith" to the dealer the amount sanctioned by the order of the Asst. commissioner of commercial taxes and the refund shall be made in the manner provided under in sub rule (1) of Rule 30 of the said Rules. 44. Rule 30(3) of the said Rules relates to refunds in excess of ₹ 2 lakhs or when any amount is unduly paid by the dealer, the appropriate assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 90 days period prescribed in Section 33(2) of the said Act, begins to run from the date of sanction order under Rule 30 of the said Rules. If the intention of the Legislature was that the period of 90 days prescribed in Section 33(2) of the said Act were to run from the date of sanction order under Rule 30 of the said Rules, the Legislature, would have said so in clear terms, both in Section 33(2) of the said Act and in Rule 30 of the said Rules. In the absence of any such indication, both in section 33(2) of the said Act and Rule 30 of the said Rules, we are afraid, we cannot accept the interpretation proposed by the revenue in regard to the provisions in section 33(2) of the said Act or Rule 30 of the said Rules. 47. In any case, the sanction order in terms of Rule 30 of the said rules relates back to the date of refund order made by the assessing authority under the provisions of the said Act at least to the extent of the amount referred to in the sanction order made under Rule 30 of the said Rules. The sanctioning authority, does not for the first time determine whether any refund is due or not or even the quantum of refund. The sanctioning authority merely sanctions the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have if it was construed independently of the provisions in the Act. In other words, to uphold the validity of the rule sometimes a strained meaning can be given to it, which may depart from the ordinary meaning, if that is necessary to make the rule in conformity with the provisions of the Act. This is because it is a well settled principle of interpretation that if there are two interpretations possible of a rule, one of which would uphold its validity while the other which would invalidate it, the former should be preferred. 50. In the present case, fortunately there is no need to give any strained meaning to the provisions in Rule 30 so as to make it conform to the provisions in section 33(2) of the said Act. The provisions in Rule 30 of the said Rules as they stand do not detract anything from section 33(2) of the said Act. In fact, both Rule 30 of the said Rules and section 33(2) of the said Act, operate in their respective fields. Section 33(2) is a special provision which deals with "payment of interest on the amount refundable". Rule 30 of the said Rules, deals with the aspect of "refunds" and the necessity of obtaining sanction where the amount of refund exceeds S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on delayed refund, come into play only after an order for refund has been made under Section 11-B of the said Act. Hon'ble Apex Court, then held that interest under Section 11-BB of the said Act becomes payable if, on expiry of the period of 3 months from the date of receipt of application for refund, the amount claimed is not refunded. Thus, the only interpretation of Section 11-BB that can be arrived at is that the interest under Section 11-BB of the Act becomes payable on the expiry of three months from the date of receipt of application for refund under subSection (1) of Section 11-B of the Central Excise Act, 1944. For sustaining such interpretation, the Hon'ble Apex Court relied upon well-settled proposition of law that fiscal legislation has to be construed strictly and one has to look merely at what is said in the relevant provision and there is nothing to be read in; nothing to be implied and there is no room for any intendment. 54. In Union of India and others vs. Hamdard (WAQF) Laboratories (2016) 6 SCC 621 the issue which again arose in the context of provisions of Section 11-B and 11 BB of the Central Excise Act, 1944, was whether a refund application which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with effect from 24.4.2009 and 18.7.2008, on proportionate basis since this is the date which corresponds to the expiry of 90 days from the date of receipt of applications dated 24.1.2008 and 18.4.2008 in terms of Section 10(3) of the said Act. The Respondents are, accordingly, directed to work out the aforesaid interest amount and pay the same to the Petitioner as expeditiously as possible and, in any case, within 8 weeks from today. 57. In so far as the relief in terms of prayer clause (c) of Writ Petition No.424/2018 is concerned, we find that adjudication on the said issue is still pending before the Appropriate Authorities. Accordingly, we direct the Appropriate Authorities to conclude such adjudication within a period of four months from today. If the Petitioner is still aggrieved, the Petitioner is at liberty to take out appropriate proceedings to question the decision of the Adjudicating Authorities in the context of the relief in terms of prayer clause (c), which we are not adjudicating in the first instance, in this Petition. 58. This petition is therefore disposed of by making the following order : A) The Respondents are directed to pay to the Petitioner simple inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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