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TMI Blog2022 (4) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... ving expired, assessment would be impermissible in respect of Financial Years 2014-15 and 2015-16. It was open to the Respondent to conduct an assessment in terms of Section 38 of the JVAT Act and make good the stand it has taken in its counter affidavit as regards the intra-state nature of transactions. Having not done so, it cannot be allowed to take advantage of its own wrong. Matter is remitted to the Respondent No. 3-Joint Commissioner of State Tax (Admin), Ranchi Division, Ranchi / Joint Commissioner of State Tax (Admin), Jamshedpur Division, Jamshedpur to consider the claim of refund of the petitioner in accordance with law within a period of six weeks from today - Petition allowed. - W.P (T) No. 5139 of 2021 with 5188 of 2021 - - - Dated:- 12-4-2022 - Hon ble Mr. Justice Aparesh Kumar Singh And Hon ble Mr. Justice Deepak Roshan For the Petitioner: M/s Kishore Kunal, Sumit Khadaria, Nitin Kr. Pasari, Sidhi Jalan, Advocates For the Respondents: Mr. Salona Mittal, A.C to G.A.-I ORDER Both these Writ Petitions relate to a claim of refund of ₹ 3,62,11,470/- and ₹ 2,80,13,879/- respectively for Financial Years 2014-15 and 2015-16 in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingle transaction of sale on which CST had been paid in the State where the movement of the goods commenced. During the relevant period, apart from the business of sale of goods using the online portal, the petitioner was also providing logistics services to the various sellers, who undertook sale through the said online portal. Since the amount was deposited without any tax liability or assessment and that no sale transaction took place within the State of Jharkhand, petitioner filed an application for refund under Section 52 of the Act. Petitioner had, in fact, deposited those amounts for continuity in business and to avoid coercive action. Learned Counsel for the petitioner submits that refund has been refused on the ground that petitioner is not a registered dealer under JVAT Act and there is no provision under the Act to make such a refund. Learned counsel for the petitioner further submits that retention of the amount without any liability of tax would be in violation of Article 265 of the Constitution of India. It is submitted that in such circumstances, a mandamus can be issued for grant of refund of the amounts collected and retained by the respondent in violation of Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commissioner State Tax (Dhanbad) Division, vide Order No.321, dated 25.03.2021, allowed the refund of the petitioner for the period 2014-15 and 2015-16 (Annexure-10). Learned counsel for the Petitioner submits that vide order dated 9.2.2021, this Hon ble Court had held that any assessment proceedings would be impermissible for the period 2014-15 in light of Section 39 of the JVAT Act which prohibits assessment under Sections 37 or 38 after expiry of five years from the end of the tax period to which the assessment relates. In the present case, no assessment can be carried out as the period of limitation for both years, i.e., 2014-15 and 2015-16 have expired. 6. Based on these submissions, learned counsel for the Petitioner has prayed for quashing of the impugned order and a direction for refund of the amount. 7. Learned counsel for the State Mr. Salona Mittal, A.C to G.A-1 referred to the stand taken in the counter affidavit of the Respondent Nos. 1 to 3 filed on 24.3.2022 and 22.3.2022 respectively. In both the counter affidavits, two fold stand has been taken by the Respondents. Firstly, the transaction of the Petitioner falls within the category of intra state sales. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged by the State of Origin in terms of Section 3(a) read with Section 9 of the CST Act. He has relied on the following judgments in Petitioner s own case wherein it was held that transactions of selling goods to individual consumers by the Petitioner is one of inter-state nature and the situs of sale is wholly irrelevant i. [2016] 76 taxmann.com 367 (Madras), para 23 onwards]: WS Retail Services Private Limited Vs. Union of India ii. [2015] 62 taxmann.com 387 (Kerala) para 10]: Flipkart Internet (P.) Ltd. Vs. State of Kerala iii. [2017 SCC OnLine P H 2965]: WS Retail Services Private Limited Vs. Union of India He further submits that even in terms of admitted facts, there is no assessment or demand against the Petitioner and thus, appropriation of amounts collected without demand / assessment from the Petitioner are without the authority of law and in violation of Article 265 of the Constitution of India. Reliance is placed on Century Metal Recycling Pvt. Ltd. Vs. Union of India, reported in [2009 (234) ELT 234 (P H), para 13[ followed in Concepts Global Impex Vs. Union of India, reported in [2019 (365) ELT 32 (P H)]. He submits that the autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the JVAT Act since the petitioner is not a registered dealer and no assessment proceedings have been held. Under the Scheme of JVAT Act, assessment proceedings can be held against dealers, who have failed to get themselves registered. However, no assessment can be made under Sections 37 or 38 after expiry of 5 years from the end of the tax period, to which the assessment relates. On the face of the pleadings on record and the stand of the respondents brought through their counter affidavit, the rejection of claim for refund only on the ground that there is no provisions under the JVAT Act, 2005 for entertaining such a claim is not sustainable in law. Whether the contention of the petitioner that the entire sale transaction originated in a different State after payment of central sales tax to the tune of ₹ 58,05,157/- and there was no sale transaction originating within the State of Jharkhand for the respondent to retain the amount so deposited is a matter of verification upon assessment. However, as it appears the transaction relates to the period December, 2014 to August, 2015. Any assessment proceedings in respect of transaction for the period December, 2014 till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of admitted tax and the intra state nature of transactions. The Petitioner has replied to such contentions, as noted hereinabove. The same are not repeated herein since this Court vide its order dated 09.02.2021 passed in W.P.(T) No. 2429 of 2018 has already rendered its finding on identical issue. In the said judgment, it was left to the assessing authority to undertake assessment for the Financial Year 2015-16 since the limitation period was yet to expire, which was to expire on 31.3.2021, i.e., five years from the end of tax period 2015-16. Assessment in case of Financial Year 2014-15 was held to be impermissible. 12. It is undisputed that in the present case the limitation period for even Financial Year 2015-16 has also expired and no assessment has been carried out. As a corollary, no demand notice in terms of such assessment has been issued. Therefore, in the light of Section 39 of the JVAT Act, the limitation period having expired, assessment would be impermissible in respect of Financial Years 2014-15 and 2015-16. It was open to the Respondent to conduct an assessment in terms of Section 38 of the JVAT Act and make good the stand it has taken in its counter affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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