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TMI Blog2021 (12) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... he authorities of the selling State (i.e. State Government of West Bengal) have been delegated the powers of assessment, re-assessment, collection and refund of tax under the respective State legislations on behalf of the Union of India. Even though the tax is collected by the State Government on behalf of the Union of India, the proceeds so collected are assigned to the State Government and retained by it in view of Section 9(3) of the CST Act. Section 8 of the CST Act provides for the rate of tax. It is the admitted position as appears from record that the purchasing HSD oil dealer /petitioners as well as IOCL/the selling dealer in West Bengal have registered themselves under the Central Sales Tax Act and the declared goods are certified in the certificate of registration of the petitioner as well as purpose for purchase has also been certified, petitioners are entitled to concessional rate of tax under Section 8 (1) of the CST Act, 1956 since the IOCL/selling dealer has obtained from the petitioner/purchasing dealer the declaration in the prescribed form duly filled and signed by them containing the particulars of the goods that were ordered/purchased/supplied under a certain sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the purchasing respective State Government, in favour of the petitioners on inter-State sales in question and it shall accept the aforesaid relevant C Forms and allow concessional rate of tax to the petitioners on the basis of the said relevant C Forms subject to formal verification of the same. Petition disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Sales Tax Rules, 1956 and whether in view of Rule 12 (7) of the CST Rules, 1956 and under the aforesaid Act and Rules there is any specific or complete statutory bar in filing the "C" Forms belatedly at the stage of assessment proceeding? (3) Whether on the facts and in the circumstances of the case impugned assessment order is bad in law to the extent of refusal to accept the "C" Forms relating to relevant disputed period causing denial of concessional rate of tax to the petitioners on purchase of HSD oil during the relevant period in course of Inter-State sale in spite of admitted position and specifically recording by the assessing officer in its impugned assessment order that the "C" Forms in respect of the relevant period were submitted before him and conditions for entitlement of concessional rate of tax are fulfilment of conditions under Section 8 (1) of CST Act, 1956 and though ground for refusal to accept the relevant "C" Forms is that the same were not filed along with return and that the IOCL had not filed revised return in this regard but nowhere it has specifically recorded or held in the impugned assessment order that ground for non acceptance of "C" Forms b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gally justified in not refunding the tax collected by it from the petitioners through IOCL in excess of concessional rate by ignoring and disregarding that the excess amount of tax/full rate of tax which were paid by the petitioners was due to compelling extra ordinary circumstances of non-issuance of "C" Forms by the purchasing State Governments during the relevant period on the basis of relevant notification issued by them and "C" Forms for the relevant period were issued in favour of the petitioners by the purchasing State Government belatedly only after the said notification was quashed by the Hon'ble High Court of Jharkhand with further order giving liberty to the petitioners to recover the tax paid in question in excess of concessional rate of tax during the relevant period either from the selling dealer/IOCL in West Bengal or from the State Government of West Bengal and it is matter of record that after the SLP of the State Government of Jharkhand was dismissed by the Hon'ble Supreme Court against the said order of the Hon'ble Jharkhand High Court, the "C" Forms in question were issued and by the time "C" Forms were issued by the respective purchasing State Governments time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are as follows: Writ Petitioners are purchasing dealers of HSD oil and are registered under the Central Sales Tax Act, 1956 (hereinafter referred to as "CST Act") and their Certificate of Registration in Form B under the Central Sales (Registration and Turnover) Rules, 1957 (hereinafter referred to as "CST Rules") provide for the purchase of High Speed Diesel Oil (hereinafter referred to as "HSD Oil") against "C" Forms at a concessional rate of tax which were belatedly submitted during the course of impugned assessment proceeding though not along with return by IOCL due to compelling exceptional circumstances beyond the control of the petitioners. According to the petitioners prior to 01.07.2017 petitioners were purchasing HSD Oil (for the purpose of use in manufacturing and/or processing of goods for sale and/or use in mining) from IOCL in the State of West Bengal for their Units situated in the State of Jharkhand at a concessional rate of tax under the CST Act, 1956, in course of inter-State sale, from the State of West Bengal at concessional rates of tax under Section 8(1) read with 8 (3) and 8(4) of the CST Act, 1956, against the issue of "C" Forms to IOCL prior to 1.7.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g State for issuance of "C" Forms in favour of purchasing dealers/petitioners and further holding that the petitioners would be entitled to claim refund of the excess tax collected either by the Oil selling Companies/IOCL or from the State Government concerned, as would appear on perusal of Paragraph 27 of the said judgment against which Respondent State Government of West Bengal could have filed Appeal before the Hon'ble Supreme Court if so aggrieved though it was not a party to the said proceeding before the Hon'ble Jharkhand High Court but it did not file. Special Leave Petition (Civil) Diary No. 7966 of 2020 filed by the State of Jharkhand against the aforesaid final judgment and order of Hon'ble High Court of Jharkhand was also dismissed by the Hon'ble Supreme Court by order dated 13.09.2021. The Hon'ble High Court of Orissa in W.P. (Civil) No. 23585 of 2017, by its final judgment and order dated 12.12.2018 also passed a similar order in favour of the Petitioner No. 1 with respect to the similar Circular dated 17.08.2017 issued by the State of Orissa. IOCL filed Review Petition before the Hon'ble High Court of Jharkhand primarily contending that it is only the petitioners her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Form 'C' by the authority of the State of West Bengal, claim of refund of differential tax due to the petitioner no. 1 has incorrectly and illegally denied to the petitioner no. 1, for no fault of the petitioner no. 1. (iii) For that it is submitted that the reasoning regarding non issuance of Invoice at the concessional rate of tax by IOCL to petitioner as given in the Assessment Order is untenable in the eyes of law inasmuch as the same fails to take into consideration the effect of the Provisional Credit Notes issued by the IOCL to petitioner no. 1. As such, this reason has no legs to stand in the eyes of law and ought to be rejected as without any substance or merit. (iv) For that it is submitted that the other and further reasoning given in the Assessment Order regarding non filling of revised returns by IOCL is also not sustainable in the eyes of law. This is so as non submission of revised returns cannot jeopardize the legitimate substantive claim of another party, which is going to be directly affected by the action/non-action of another party, on which it has no control. Further, in any case, such technical plea cannot defeat the substantive right of the petitioners. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of Section 8 (3) read with Section 8 (4) of the CST Act, Declaration Form 'C' has been duly furnished by the petitioner no. 1 to Respondent-IOCL, which was, in turn, deposited by IOCL with the authority of the State of West Bengal. Thus, the petitioner no. 1 and/or Respondent-IOCL have fulfilled all conditions pertaining to concessional sale or purchase and merely because, at the time of raising of Invoices, under compelling circumstances, tax was charged at full rate, cannot be considered as a valid ground for denying the benefit of refund to the petitioner no. 1 of the differential tax, as, admittedly, the petitioner no. 1 was entitled to purchase H.S.D oil at concessional rate. (x) For that Assessing Officer failed to appreciate that the issue as to whether the petitioners/petitioner is/are entitled to claim refund of the differential tax, which was realized and deposited by Respondent-IOCL to the State of West Bengal, is no longer res integra, as the Hon'ble Orissa High Court has held that the petitioner no.1/petitioner is/are entitled for refund of the amount, which was collected from the Petitioner no.1 in the circumstances narrated above, without any fault of petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order dated 30.06.20210 passed by Respondent No. 2 in the case of IOCL pertaining to the Assessment Year 2017-18, to the extent submission of Additional Form 'C' by Respondent- IOCL pertaining to the petitioner no. 1 has been denied in having consequential effect of denying the benefit of refund of the excess differential tax to the petitioners and borne by it and stands paid to the Respondent/State of West Bengal; and (b) For issuance of appropriate writ/order/direction, including a Writ, in the nature of Mandamus, directing the Respondent-State of West Bengal to consequentially refund the amount of ₹ 13,85,00,494.21/- being the amount of excess differential tax realized from the petitioners by IOCL and deposited with the State of West Bengal in respect of purchase of HSD oil, which the petitioners are entitled under law without any controversy and, (c) Rule Nisi in terms of prayer (a) and (b) above, and; (d) Such further and/or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case." Common case according to the Respondent/State Government of Wes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, the taxing authority has accepted such sale being sales under Section 8 (2) of the CST Act and as such there has been no payment for excess tax or illegal tax which has been imposed by the State. The only way to claim concession on the rate of tax according to State Respondent is under the Provision of the CST Act and the Rules. There is completely discrepancy between the return, the invoices in support of the return and "C" Form. The writ petitioner is attempting to create a cloud on the said transaction. Any concession which IOCL was required to make is a contractual obligation of the IOCL and the writ petitioner. The State of West Bengal cannot be a party to the same. Rule 8(2A) of the CST (West Bengal) Rules, 1958 which provides that every dealer registered under the Act, other than those referred to in sub-rule (1) and sub-rule (2) shall, in accordance with the West Bengal Sales Tax Act, 1994 and/or the Value Added Tax Act, 2003, and Rules made thereunder shall furnish a return quarterly in Form-1 in respect of his turnover as referred to in Rule 11 of the Central Sales Tax (Registration and Turnover) Rules, 1957. Hence, the Form-1 (the Return) is a statutory form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om refund to them in the peculiar exceptional circumstances of these cases and no adverse effect should fall upon IOCL for any refund so made. (ii) The refund to the petitioners, by the State Respondents, in the circumstances of these cases, would mean unconditional acceptance of the claim for concessional rate of tax supported by the declaration forms furnished by the petitioners. Such acceptance would result in excess payment by IOCL which may be refunded directly to the petitioners and in such case IOCL shall have no claim over such refund. In case refund is made to IOCL, IOCL would be obliged to and shall make the said refund to the petitioners. (iii) While making the refund, the actual amount refundable to each of the petitioners has to be carefully ascertained by the State Respondents, preferably after hearing both the petitioners and IOCL. The amounts of refund claimed in these writ petitions, which relate only to the relevant assessment year 2017-18, are excessive. The major reason for the difference in claim for 2017-18 is, perhaps, that the petitioners have mingled the figures of 2018-19 whereto the instant dispute spills over. Adjustments in some cases may also be ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State trade or commerce during any year on and from the date so notified: [Provided that a dealer shall not be liable to pay tax under this Act on any sale of goods which, in accordance with the provisions of sub-section (3) of section 5 is a sale in the course of export of those goods out of the territory of India.] (1A) A dealer shall be liable to pay tax under this Act on a sale of any goods effected by him in the course of inter-State trade or commerce notwithstanding that no tax would have been leviable (whether on the seller or the purchaser) under the sales tax law of the appropriate State if that sale had taken place inside that State. (2) Notwithstanding anything contained in sub-section (1) or sub-section (1A), where a sale of any goods in the course of inter-State trade or commerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale during such movement effected by a transfer of documents of title to such goods to a registered dealer, if the goods are of the description referred to in sub-section (3) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed manner on the prescribed form duly filled and signed by the official, personnel, consular or diplomatic agent, as the case may be. (8) Rates of tax on sales in the course of inter-State trade or commerce. - (1) Every dealer, who in the course of inter-State trade or commerce, sells to a registered dealer goods of the description referred to in sub-section (3), shall be liable to pay tax under this Act, which shall be [two per cent] of his turnover or at the rate applicable to the sale or purchase of such goods inside the appropriate State under the sales tax law of that State, whichever is lower: Provided that the Central Government may, by notification in the Official Gazette, reduce the rate of tax under this sub-section. (2) The tax payable by any dealer on his turnover in so far as the turnover or any part thereof relates to the sale of goods in the course of inter-State trade or commerce not falling within subsection (1), shall be at the rate applicable to the sale or purchase of such goods inside the appropriate State under the sales tax law of that State. (3) The goods referred to in sub-section (1)- (a) ************* (b) are goods of the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position of the tax liability of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, [refunds, rebates, penalties,] [charging or payment of interest,] compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly: Provided that if in any State or part thereof there is no general sales tax law in force, the Central Government may, be rules made in this behalf make necessary provision for all or any of the matter specified in this sub-section. (3) The proceeds in any financial year of any tax, [including any interest or penalty] levied and collected under this Act in any State (other than a Union Territory) on behalf of the Government of India shall be assigned to the State and shall be retained by it; and the proceeds attributable to Union territories shall form part of the Consolidated Fund of India. West Bengal Sales Tax (WBST) Act, 1994: (2) (1) ……&helli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dealer in the manner referred to in sub-section (2): Provided that no application from any buyer shall be entertained unless the same is made within twelve months from the date on which the tax or excess tax, as the case may be, is paid and supported by relevant cash memo or bill issued by the dealer." (60) Refunds. --- (1) The Commissioner shall, in the prescribed manner, refund to a dealer any amount of tax, penalty or interest paid by such dealer in excess of the amount due from him under this Act, either by cash payment or by deduction or adjustment of such excess from the amount of tax, penalty or interest due in respect of other period. (2) Nothing in sub-section (1) shall be deemed to empower the Commissioner to amend, vary or rescind any assessment, or to amend, vary or rescind any order passed on appeal, revision or review under section 79, section 80, section 81, section 82 or section 83, or to confer on a dealer any relief in addition to what he is entitled under the provisions of this Act. (61) Reimbursement of tax levied under the Act in respect of……. Or inter-State sales of declared goods.--- (1) Where a tax has been levied under this Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in the course of business, sells, supplies or distributes directly or otherwise goods for cash or for deferred payment or for commission, remuneration or other valuable consideration, (c) a society including a co-operative society, club or any association which sells goods to its members or others for cash, or for deferred payment, or for commission, or for remuneration, or for other valuable consideration, (d) a factor, a broker, a commission agent, a del credre agent an auctioneer, an agent for handling of document of title to goods, or any other mercantile agent, by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of selling goods and who has, in the customary course of business, authority to sell goods belonging to principles; CST Rules, 1956 (12). (1) The declaration and the certificate referred to in sub-section (4) of section 8 shall be in Forms C and D respectively: ……………………… ………………………. (7) The declaration in Form "C" or Form "F" or the certificate in Form E- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 8(1) of the CST would be liable to be taxed at the full rate of sales tax. Relief of concessional rate of tax under Section 8(1) read with Section 8(4) of the CST Act is not conditioned on the filing of a claim in the return or in the revised return. A plain reading of Section 8(4) of the CST Act makes it clear that once a "C" Form is produced by the selling dealer (i.e. IOCL in the present case) signed by the purchasing dealer (i.e. Petitioners in the present case) the claim for a concessional rate of tax immediately matures. The declaration referred to in Section 8(4) of the CST Act is a Form 'C' as is clear from a perusal of Rule 12(1) of the CST Rules. This position is further fortified from a perusal of Rule 4(4) of the Central Sales Tax (West Bengal) Rules, 1958. In view of these provisions of law even if no claim for a concessional rate of tax has been made at the time of assessment or filing of the returns it can be made during the course of assessment or even at the appellate stage by producing "C" Forms which has been done in the instant by producing 'C' Forms during the course of and before passing the final assessment order. Purchasers on inter-State sale hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of India, otherwise, at interim stage, al the petitions will be decided finally. As there is a prima-facie case in favour of these petitioners, balance of convenience is also in favour of these petitioners and if the stay, as prayed for, is not granted, it will cause irreparable loss to these petitioners. We, therefore, stay an operation, implementation and execution of the Circular issued by the respondents dated 11.10.2017 which is at Annexure - 4 to the memo of W.P.(T) No. 6892 of 2017 during the pendency and final hearing of these writ petitions. This circular is also annexed at different annexures in different aforesaid writ petitions. We are not mentioning the different annexure numbers. Suffice it to say that the impugned circular dated 11.10.2017 which is common in all the writ petitions issued by the Principle Secretary-cum-Commissioner, Commercial Taxes Department, Jharkhand, Ranchi is stayed on a condition that concerned department will issue necessary 'C' Form to these petitioners which these petitioners can use for the purposes of effecting the inter-state purchase of goods which are defined in Section 2 (d) of the Central Sales Tax Act, 1956 and the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the learned counsel for the petitioners that provisional credit notes have also been given to them by the respective oil companies. We make it clear that the provisional credit notes given to the petitioners shall be given effect to, or in any case in which the provisional credit notes have not been given, the required refund shall always be given to the petitioners. If the respective oil companies have made the deposit to the State exchequer, they shall also be entitled to claim the refund thereof." "(28). As regards the apprehension of the learned Advocate General in his opinion given to the State Government, as also endorsed by the learned counsel for the State, that Form-C may be mis-utilised by some of the dealers, we can only clarify that appropriate action can always be taken after giving due notice to the individual dealers, and after affording them the reasonable opportunity to show-cause, and in accordance with law, but there cannot be a blanket denial of the benefit of Form-C, as has been done by virtue of circular dated 11.10.2017." "(29). With these observations and directions, all these writ applications stand allowed. The pending Interlocutory Applications in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot accurate. But whether the goods specified in the registration certificate in From 'B' can be used for the purpose is not for the selling dealer to determine. That is a matter which has already been determined by the notified authority issuing the certificate of registration." (2005) 6 SCC 499 (State of H.P & Ors. Vs Gujarat Ambuja Cement Ltd. & Ors.) - Paragraphs 37 and 38 "(37) It was urged on behalf of the appellant-State that declaration forms under the Central Act were not filed within the time and/or were defective. That does not in reality amount to non-compliance of a statutory provision. The respondent No.1- company was claiming exemption and, therefore, had not filed the declaration forms. Some of the forms which were filed were treated to be defective. Undisputedly, before the revisional authority a prayer was made for grant of opportunity to rectify the defects, if any. That was turned down. It is to be noted that under Rule 12(7) of the Central Sales Tax (Registration and Turnover) Rules, 1957 (in short the `Registration Rules') the declaration form can be filed at a subsequent point of time and not necessarily along with returns. On an application be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... narily by a subordinate legislation could not have laid down that the tax paid even by mistake would not be refunded. If a tax has been paid in excess of the tax specified, save and except the cases involving the principle of `unjust enrichment', excess tax realized must be refunded. The State, furthermore is bound to act reasonably having regard to the equality clause contained in Article 14 of the Constitution of India." (1986) 3 SCC 50 (Commissioner of Sales Tax, UP Vs M/s Auriya Chamber of Commerce, Allahabad) - Paragraph 31 "(31) Where indubitably there is in the dealer legal title to get the money refunded and where the dealer is not guilty of any latches and where there is no specific prohibition against refund, one should not get entangled in the cobweb of procedures but do substantial justice. The above requirements in this Case, in our opinion, have been satisfied and therefore we affirm the direction of the Additional Judge (Revisions), Sales Tax for refund of the amount to the dealer and affirm the High Court's judgment on this basis." (1978) 4 SCC 271 (Hindustan Sugar Mills Vs State of Rajasthan & Ors.) - Paragraph 18 "(18) "………&hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any amount which is exempted from payment of income-tax, or is not income within the contemplation of law, he may likewise bring this to the notice of the assessing authority, which if satisfied, may grant him relief and refund the tax paid in excess, if any. Such matters can be brought to the notice of the concerned authority in a case when refund is due and payable, and the authority concerned, on being satisfied, shall grant appropriate relief. In cases governed by section 240 of the Act, an obligation is cast upon the revenue to refund the amount to the assessee without his having to make any claim in that behalf. In appropriate cases therefore, it is open to the assessee to bring facts to the notice of the concerned authority on the basis of the return furnished, which may have a bearing on the quantum of the refund, such as those the assessee could have urged under section 237 of the Act. The concerned authority, for the limited purpose of calculating the amount to be refunded under section 240 of the Act, may take all such facts into consideration and calculate the amount to be refunded. So viewed, an assessee will not be placed in a more disadvantages position than what he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed the form in which such declaration has to be issued by the purchasing dealer it is called 'Form-C'. In case form-D or Form-C is produced, the assessing authority would levy tax on inter-State sales @ 4% only; otherwise the sales will attract the higher rate of tax prescribed in sub-section (2)." "(4). Before we deal with the proviso to sub-section (4), it would be appropriate to refer to the rule relevant in this behalf. It is Rule 12. It is a lengthy rule containing as many as ten sub- rules. Sub-rule (1) says that the certificate and the declaration referred to in clauses (a) and (b) of sub-section (4) of Section 8 shall be in Forms C and D respectively. The other provisions in sub-rule (1) and sub-rules (2) to (6) deal with various aspects relating to the said forms which it is not necessary to refer to for the purpose of this case. Sub-rule (7) reads as follows: "(7) The declaration in Form 'C' or Form 'F' or the certificate in Form 'E-I' or Form 'E-II' shall be furnished to the prescribed authority up to the time of assessment by the first assessing authority: Provided that if the prescribed authority is satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed authority is satisfied that the dealer was prevented by sufficient cause from furnishing such certificate "within the aforesaid time-limit" he may allow such certificate to be furnished within such further time as he may permit. Reading sub-rule (7) as a whole it follows that Form-C shall be furnished up to the time of assessment by the first assessing authority but in a proper case the prescribed authority (which means in the context the assessing authority) may permit such forms to be filed within such further time as he may permit. This necessarily means that the assessing authority will complete the assessment but at the same time permit the dealer to file Form-C within the time specified by him. In case the dealer files form-C within the time specified, it is obvious, the assessing authority will revise the order of assessment granting the requisite relief. "(11). We are unable to agree with the Revenue's contention that because Rule 12(7) speaks of "up to the time of assessment by the first assessing authority" or for that matter the proviso to the said sub-rule it excludes, by necessary implication, the appellate authorities. The decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority shall have power to adjust the amount due to the refunded under subsection (1) or sub-section (2), towards the recovery of any amount due on the date of adjustment, from the dealer. (4) In case refund under sub-section (1) or sub- section (2) or adjustment under subsection (3) is not made within ninety days of the date of final assessment, or as the case may be, within ninety days of the date of receipt of the order in appeal or revision or the date of expiry of the time for preferring appeal or revision, the dealer shall be entitled to claim interest at the rate of ten percent per annum on the amount due to him from the date of expiry of the said period upto the date of payment or adjustment." "(19) Article 265 of the Constitution of India mandates that no tax shall be levied or collected except by authority of law. In terms of the said provision, therefore, all acts relating to the imposition of tax providing, inter alia, for the point at which the tax is to be collected, the rate of tax as also its recovery must be carried out strictly in accordance with law." "(20) If the substantive provision of a statute provides for refund, the State ordinarily by a subordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our opinion, the writ petition was maintainable. We are, therefore, of the opinion that the interest of justice would be served if instead of the appellant refunding the amount to the first respondent and later claiming refund from the authorities, if the State of Kerala is directed to refund the amount of tax collected with interest at the rate of 10% per annum to the first respondent at an early date, and not later than four months from the date of communication of this order. It is ordered accordingly. If, however, the amount is not paid within the aforementioned period, the outstanding amount shall carry interest @ 15 % per annum." 1975 SCC OnLine All 503 : (1978) 41 STC 315 (Indian Explosives Ltd. Vs Commissioner, Sales Tax, UP & Ors.) - Paragraphs 3,4 and 8 "(3) The first hurdle that the petitioner-company has to cross is whether it is entitled to maintain this petition. Under the U.P. Sales Tax Act, tax is levied on a dealer effecting sale. The dealer in the instant case is the IOC and the tax has been levied upon it. Ordinarily it is the dealer alone who can question the validity or quantum of tax. The petitioner is not the dealer even though it is liable to pay tax to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtends to any person aggrieved and, furthermore, to any stranger. The Court of Queen's Bench, by virtue of its inherent jurisdiction over the inferior tribunals, has always the right to interfere if it sees that the lower tribunal is going or has gone beyond its jurisdiction, or has acted in a way contrary to law, or appears from the record to have fallen into error in point of law; and it can so interfere, not only at the instance of a party or a person aggrieved but also at the instance of a stranger if it thinks proper. When application is made to it by a party or a person aggrieved, it will intervene ex debito justitiae, in justice to the applicant. When application is made by a stranger it considers whether the public interest demands its intervention. In either case, it is a matter which rests ultimately in the discretion of the court." "(8) Before we leave this topic we might as well refer to a decision of Grover, J., of the High Court of Punjab, as he then was, which deals directly with the point arising before us. It was held in that case that relief under Article 226 of the Constitution can be sought not only by a dealer as defined in the Sales Tax Act, who is liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge could not have declined the relief taking into account the alleged action." (2014) 6 SCC 335 (Union of India Vs Tata Chemicals) - Paragraph 38 "(38) Providing for payment of interest in case of refund of amounts paid as tax or deemed tax or advance tax is a method now statutorily adopted by fiscal legislation to ensure that the aforesaid amount of tax which has been duly paid in prescribed time and provisions in that behalf form part of the recovery machinery provided in a taxing Statute. Refund due and payable to the assessee is debt-owed and payable by the Revenue. The Government, there-being no express statutory provision for payment of interest on the refund of excess amount/tax collected by the Revenue, cannot shrug off its apparent obligation to reimburse the deductors lawful monies with the accrued interest for the period of undue retention of such monies. The State having received the money without right, and having retained and used it, is bound to make the party good, just as an individual would be under like circumstances. The obligation to refund money received and retained without right implies and carries with it the right to interest. Whenever money has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the course of impugned assessment there cannot be a case of non-compliance of submission of "C" Forms and neither it is a case of defective "C" Forms in any manner by the State Government of West Bengal. It appears from Paragraph 7 of the affidavit-in-opposition on behalf of the Respondent/the State of West Bengal filed by Shri Anirban Talukdar, dated 25.08.2021, that it has been conceded that "C" Forms issued by the petitioners were duly produced by IOCL during its assessment proceedings. However, in the entire Affidavit, the State of West Bengal has nowhere contended that IOCL is in law liable to pay higher rate of tax or that the petitioners were wrongly issued "C" Forms or the same were not genuine or the relevant provision of concessional rate of tax was not applicable to the case of the petitioner during the relevant period on the sale in question or the amount of tax in question collected by the IOCL from the petitioners in excess of concessional rate was not deposited with the Respondent/State of West Bengal. In the present case it has not been disputed by the Respondent State Government of West Bengal that the Petitioners are duly registered under the CST Act and HSD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - State sale during the relevant period and refusal to refund the excess tax in question is contrary to law and equity as well. Firstly, the Respondents are trying to resist the claim of refund by entangling the Petitioners in the cobwebs of procedures and legal technicalities, which approach has not been appreciated by the Courts in the various decisions referred hereinabove. Secondly, there is no requirement under any statute to allow refund only if the Provisional Credit Notes have been given effect to. In fact, there is no requirement of issuing a Provisional Credit Note under any of the statutes involved in the present case. Third, the Provisional Credit Notes were issued by IOCL only on the request of the Petitioners, as the State of Jharkhand was refusing to issue "C" Forms until and unless it was satisfied that IOCL had agreed to make a sale to the Petitioners at a concessional rate of tax and not at the full rate as mentioned in the invoices. Pleading in this regard is in paragraphs 20-22 of the Writ Petition. Fourth, perusal of the Provisional Credit Note as appears at Page-90 of the Writ Petition would make it clear that the refund would be processed by IOCL only if it r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(1) of the West Bengal Sales Tax Rules, 1995 inter-alia provide for filing of a revised return for each quarter before the filing of the return for the next quarter. In the present case, by the time the Hon'ble High Court of Jharkhand at Ranchi passed its interim order dated 17.05.2018 and the Hon'ble Supreme Court dismissed the Special Leave Petition filed by the State of Jharkhand against that order on 29.10.2018, the time for filing of revised returns by IOCL for the period commencing 01.07.2017 had long expired. The issue finally came to be resolved once the final judgment was rendered by the Hon'ble High Court of Jharkhand at Ranchi on 28.08.2019 and the Special Leave Petition filed by the State of Jharkhand was dismissed by the Hon'ble Supreme Court on 13.09.2021. Submission of the petitioners while making a Representation dated 29.12.2020 being Annxure P-17 of the Writ Petition to the Respondent/State of West Bengal, in paragraph 23 a prayer was made by the Petitioners that "refund ought to be granted to Tata Steel Limited". The submission made in the subsequent paragraph was therefore, to directly refund to the Petitioners the amount of excess tax collected by them/the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed the said writ petition at the instance of the purchasers of HSD Oil. Special Leave Petition (Civil) Nos. 2279-2280 of 2021 filed by the State of Gujarat against the said order of Hon'ble Gujarat High Court was dismissed by the Hon'ble Supreme Court, by order dated 10.02.2021. Similarly, the Hon'ble Punjab & Haryana High Court in the case of Capro Power Ltd. v. State of Haryana & Ors. (CWP No. 29437 of 2017) by order dated 28.03.2018, had taken a similar view and directed for refund to the Petitioners therein of the excess tax collected. Special Leave Petition against the aforesaid judgment of the Hon'ble Punjab & Haryana High Court has also been dismissed, by order dated 13.08.2018, passed by the Hon'ble Supreme Court in SLP (C) No. 20572 of 2018. In the present case the decision of the Hon'ble Jharkhand High Court (supra) dated 28.08.2019, in which in paragraph 27 of the judgment a positive mandate has been given in favour of the Petitioners to apply for and obtain refund of the excess tax deposited by it. The judgment of Hon'ble Jharkhand High Court (supra) dated 28.08.2019 (as reported in 2019 SCC Online Jharkhand 1255) has attained finality as Special Leave Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the legal rights of the Petitioners to get a refund of excess tax collected by the Respondents. This proposition of law is supported by the judgments passed by the Hon'ble Supreme Court in the case of Commissioner of Sales Tax, U.P. v. M/s. Auriaya Chamber of Commerce, Allahabad, reported in (1986) 3 SCC 50 at Paragraph 31 and Hindustan Sugar Mills v. State of Rajasthan & Ors., reported in (1978) 4 SCC 271 at Paragraph 18, Corporation Bank Vs. Saraswati Abharansala & Anr. Reported in (2009) 1 SCC 540 at Paragraphs 19 & 20. With regard to the contention of the Respondent/State of West Bengal that since IOCL has failed to revise its returns by claiming the sales in question to be sales under Section 8(1) read with Section 8(3) of the CST Act, its claim for sales at a concessional rate of tax was to be rejected is not sustainable in law since Petitioners herein have no control over its seller i.e. IOCL and the Petitioners cannot direct IOCL to revise/amend its returns. As a buyer/purchaser Petitioners' duty ends with the furnishing of "C" Forms. Once the "C" Forms had been furnished by the Petitioners and had been produced at the time of assessment by IOCL, the purchaser/buyer (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.P.& Ors. v. M/s Hyderabad Asbestos Cement Production Ltd. & Ors., reported in (1994) 5 SCC 100 at paragraphs 3, 4, 5 and 11. It is well settled that if a claim is otherwise admissible on the basis of documents on record, the failure to revise a return would be immaterial as it is the duty of the Assessing Officer to impose tax on the basis of law as not the basis of an alleged concession, acquiescence or mistake or failure on the part of the assessee to make a correct claim as appears from the judgments in the case of Jupiter International Limited v. The Senior Joint Commissioner Sales Tax, reported in 2014 SCC OnLine Cal 4122;Tarapore and Company, Jamshedpur v. State of Jharkhand, reported in 2019 SCC OnLine Jhar 1918, CIT v. Bharat General Reinsurance Company Limited, reported in 1970 SCC OnLine Del 301at paragraphs 6 and 11, Corporation Bank (supra) at paragraphs 10, 18-26. In any event as held by the Hon'ble Supreme Court in Corporation Bank (supra) and in State of Punjab & Ors. v. Atul Fasteners Ltd., reported in (2007) 4 SCC 471 at paragraph 5 a seller of goods is an agent of the State Government while collecting taxes on its behalf. Therefore, even assuming, that IOCL w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriate powers to grant any other relief not even prayed for by the Petitioners in view of the judgment of the Hon'ble Supreme Court in the case of State of Madhya Pradesh & Anr. v. Bhailal Bhai & Ors., reported in AIR 1964 SC 1006 at paragraphs 4 and 10. Considering the submission of the parties, relevant records, legal provisions of law and decisions cited before me and the stand taken by the Respondent IOCL and the Respondent State Government of West Bengal on the issues involved in these Writ Petitions I am inclined to allow these Writ Petitions by holding as hereunder: (1) In the facts and circumstances of the case petitioners who are the purchasing dealers of HSD oil can be called "person aggrieved" and have locus standi to file these Writ Petitions in view of admitted factual position that the impugned action on the part of the Respondent State Government of West Bengal have deprived the petitioners of their legitimate right to purchase the HSD oil at statutory concessional rate of tax under Central Sales Tax Act, 1956 in course of inter-State sale during the relevant period and to get refund of tax which was collected by the Respondent Government of West Bengal from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CST Act, 1956 and that the petitioners had complied with the terms and conditions of Section 8 (3) and 8 (4) of the Central Sales Tax Act, 1956 and accordingly petitioners were entitled to purchase HSD oil from selling dealers in the State of West Bengal at a statutory concessional rate of tax in course of inter-State sale during the relevant disputed period pertaining to which "C" Forms have been submitted by IOCL before the Assessing Officer. (5) Respondent State Government of West Bengal is unjust and unfair in taking the plea that the petitioners/purchasing dealers cannot claim refund in question from it directly and it should claim the same from IOCL/the selling dealers of HSD Oil company in West Bengal and that since selling dealer/IOCL has not filed the relevant "C" Forms along with return or revised returns for such claim in spite of being fully aware of the extra ordinary compelling circumstances which are matters of record that the time to file the relevant "C" Forms along with return or revise return under the statute had already expired when the "C" Forms were issued by the purchasing respective State Governments in favour of the petitioners pursuant to the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing to refund the amount of tax collected by it in excess of concessional rate of tax for the relevant period by taking the plea of consent or acquiescence against the petitioners or IOCL not legally justified since it is admitted factual position that the Respondent State Government of West Bengal had been allowing the petitioners to purchase the HSD oil at a concessional rate of tax before the relevant disputed period and is still continuing to allow the petitioners to purchase the HSD oil at a concessional rate of tax after the relevant disputed period and only during the relevant dispute period it has denied the petitioner benefit of statutory concessional rate of tax on purchase of HSD oil. (9) In the facts and in the circumstances of the case action of the Respondent State Government of West Bengal denying the petitioners their legitimate right to purchase HSD oil in course of Inter-State sale on statutory concessional rate of tax during the relevant disputed period and act of refusal to refund the excess amount of tax in question collected by it in excess of concessional rate of tax is without statutory sanction and is contrary to in disregard to instruction dated 1.3.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinary circumstances beyond their control. High Court has power under Article 226 of the Constitution of India to grant relief thereunder to any "person aggrieved" in the interest of justice if the State herein this case Respondent State Government of West Bengal has acted in a way contrary to law appears from record that it has error on the point of law and committed. (14) The Writ Court has the power to mould the relief and to issue high prerogative writs in order to do complete justice and can mould the relief in the facts and circumstances of this case. In view of foregoing discussions all the instant Writ Petitions are allowed by passing the following orders/directions: (i) Impugned order of assessment passed by the Assessing Officer is set aside to the extent of refusal of acceptance of relevant "C" Forms submitted before him during the impugned assessment proceeding by the HSD oil purchasing dealers/petitioners through the oil selling dealers/IOCL relating to the relevant disputed period which were issued by the purchasing respective State Government, in favour of the petitioners on inter-State sales in question and it shall accept the aforesaid relevant "C" Forms and a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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