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TMI Blog2020 (12) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... though not limitation. One of the guiding principles that may persuade the Court to exercise or not to exercise writ jurisdiction is, what is the period of limitation prescribed for filing the suit, if the petitioner had to file such a civil proceeding. If the petitioner has missed the limitation for filing a suit, the Court would be reluctant to exercise the writ jurisdiction, unless of course either there is a valid explanation for delay or there are some special or extraordinary reasons for entertaining petition at such a late stage. This preamble was necessary because in the present cases the taxes were collected during the period between the financial year 2013-2014 to 2015-2016. Present petitions came to be filed on or around 21st August, 2020. There is, thus, minimum delay of only five years in raising the demands. All that the petitioner has offered by way of explanation for such delay is that the petitioner first approached the authorities under RTI Act for collecting information and then made a request for refund of the taxes. The decision in case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [ 1996 (12) TMI 50 - SUPREME COURT ] was distinguished on the ground t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either directly or by inference. A contract to transport goods from one place to another is not a works contract. Accordingly, the Division Bench directed the State-authorities to refund the tax deducted with statutory interest. The petitioner would also point out that in another group of petitions being WP(C) No.177/2015 and connected petitions, on an identical issue, filed by the present petitioner for refund of such tax illegally collected came to be allowed by a Division Bench in case of Shri Ashish Kumar Dey Vs. State of Tripura by a judgment dated 3rd September, 2015 relying on the earlier decision in case of Shri Dipak Bhattacharjee (supra). [6] In such background, the petitioner had previously filed an application under Right to Information Act(RTI) for collecting information regarding deduction of tax for the work done by the petitioner for the financial years 2013-2014 to 2017-2018. Once such information was available, the petitioner had approached the State-authorities for refund of the tax collected under an application dated 24th June, 2020. Since there was no response from the said authorities, the petitioner has filed the petition. The prayer of the petitioner, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anism for refund of tax collected at source. [10] It is true that in the past this Court has held that in the instances where a transporter is assigned the sole task of transporting the goods from one place to another, such transaction would neither amount to transfer of right to use the goods nor execution of work contract and in such a situation, VAT is not payable. However, in the present group of cases we are concerned about entertaining a writ petition after several years of arising of the cause of action. Though, exercise of writ jurisdiction under Article 226 of the Constitution of India is not governed by any statutory provision of limitation, the Courts proceed on the basis that such discretionary exercise of power would not be done in favour of a person who is not vigilant in pursuing his rights and remedies. The Court would not favour a litigant who is tardy, has approached the Court after gross delay that too without any explanation for inordinately long time consumed. In this context, thus, the Courts while exercising writ jurisdiction, invoke the principle of delay and laches, though not limitation. [11] One of the guiding principles that may persuade the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court has sided with the assessee. If the petitioner wanted refund of such wrongly collected tax he had to raise a demand and challenge the same in reasonable time. [12] The decision of Supreme Court in the case of Mafatlal Industries(supra) was rendered by a nine-Judge Bench. Various issues of tax collection and refund of tax illegally collected came up for consideration. One of the principles laid down in the said judgment was that every assessee must fight his own battle and take up the issue of challenging levy and seek refund of tax, if he had any dispute about the recovery thereof, before the appropriate authority or Court. No assessee can wait for the outcome of a litigation initiated by some other person, on a similar issue and thereafter approach the Court years later, relying on the decision of the High Court or the Supreme Court in a similar case. In the process, the Court overruled the decision in case of The Sales Tax Officer, Banaras Ors. Vs. Kanhaiya Lal Makund Lal Saraf reported in AIR 1959 SC 135 and the decision in case of M/s Tilokchand and Motichand Ors. Vs. H. B. Munishi Anr. reported in (1969) 1 SCC 110 was approved. The propositions la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und of erroneously collected tax. However, the above noted legal propositions would apply in other cases also. In other words, the petitioner cannot approach a Writ Court several years after collection of tax, without any explanation for delay caused in filing the petition and argue that without any regard being had to the delay and laches the refund must be granted. [14] We may now refer to the decisions cited by the counsel for the petitioner. In case of Salonah Tea Company (supra), the Court held that when tax is collected without authority of law Court can direct refund. It was the case in which the High Court while setting aside the assessment order, refused to grant refund. It was in this context that above decision was rendered. However, it was noted that there was nothing on the record to suggest that there was any delay or laches on part of the petitioner in claiming the refund. [15] In case of M/s Dehri Rohtas Light Railway Company(supra), while granting refund of tax wrongly collected, the opposition, on the ground of delay and laches, was overruled by making following observations: 12. The question thus for consideration is whether the appellant should be d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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