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TMI Blog2023 (5) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order dated 29.08.2019 passed by the Superintendent of Taxes, Guwahati, Unit-A, there is no reference to any such grounds or reasons which are stated to have been furnished by the petitioner. It is not the submission of the respondent Department that no such grounds as contended by the petitioner, had been furnished before the Superintendent of Taxes for consideration of the application which was filed beyond limitation, explaining the circumstances under which the delay had occurred. In the opinion of this Court, where the first authority namely the Superintendent of Taxes, Guwahati, Unit-A in his order did not refer to any of the grounds submitted in explaining the delay that had occurred by the petitioner, perhaps there was no occasion for the revisional authority to consider the grounds and render a finding as to whether the same is sufficient or insufficient. Such power under the Act and the Rules is not bestowed upon the revisional authority. Rather it is the assessing authority who is conferred with the powers to grant or reject refund applications beyond the period prescribed upon such consideration of the grounds and reasons mentioned. In the facts and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner has sought for has already been determined by an adjudicatory process by way of assessment order dated 06.07.2016 passed by the Superintendent of Taxes. Matter is remanded back to the respondent No. 4 to re-decide the issue within a period of four week from the date of receipt of certified copy of this order - Petition allowed by way of remand. - HON BLE MR. JUSTICE SOUMITRA SAIKIA For the Petitioners : Dr. Ashok Saraf, Sr. counsel assisted by Mr. P. Baruah, Advocate For the Respondents : Mr. B. Gogoi, SC, Finance Taxation JUDGMENT ORDER (CAV) The petitioner carries on the business under the name and style of M/S ITAS G Pharma and having its office in the Sree Nagar area of Guwahati. It is submitted that the petitioner was a registered dealer under the Assam VAT Act, 2003 bearing registration number 18530036665. According to the petitioner for the assessment year 2012-13, it had submitted its return of turnover under the Assam VAT Act, 2003 before the assessing officer and claiming a sum of Rs. 77,36,315.51 (Rupees Seventy Seven Lakh Thirty Six Thousand Three Hundred Fifteen and Fifty One Paisa Only) to be the amount refundable to the petitioner. The assessing officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with refund application whereby reasons for delay were explained with a prayer for condonation of such a delay, if any. 3. Being aggrieved by the order dated 29.08.2019 passed by the Superintendent of Taxes, Unit-1, Guwahati, the petitioner filed a revision application before the Additional Commissioner of Taxes, namely respondent No. 3. The same also came to be dismissed vide order dated 25.02.2021 on the ground that there was no substantive evidence for the delay in filing the refund application and the assessing officer was correct in rejecting the refund application as per provisions of Assam VAT Act, 2003 read with the Rules of 2005. 4. Being aggrieved by the rejection of the refund application dated 29.08.2019 as well as the rejection of the revision petition by the Addl. Commissioner of Taxes vide order dated 25.02.2021, the present writ petition has been filed praying for issuance of a writ to the respondents to direct release of the refundable amount receivable by the petitioner under the Assam VAT Act of 2003 read with the Rules of 2005. 5. The learned Senior counsel for the petitioner has strenuously urged that once an assessment order is passed by the authorities conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 265/- was held to be refundable. Therefore, the said amount ought to have been refunded by taking into account the explanation furnished by the petitioner explaining the grounds of delay. 7. The learned Sr. Counsel further refers to the Judgment of the Apex Court rendered in M/s. Shiv Shankar Dal Mills and Others Vs. State of Haryana and Ors., reported in (1980) 2 SCC 437. Pressing this Judgment into service, the learned Senior for the petitioner counsel submits that the powers of the constitutional Court bestowed under Article 226 are discretionary in nature and this Court can pass any order to secure justice in terms of public interest and equity. Where a refund is payable to the assessee, the same cannot be withheld or turned down on the negative plea of alternative remedy and the same must be permitted on the basis of the Maxim ubi jus ibi remedium and on equity. It is submitted that in such cases, the Apex Court held therein that law of limitation is not applicable and any such refund or amount held to be payable to be assessee should be refunded. It is accordingly submitted that the impugned orders dated 29.08.2019 and 25.02.2021 should be interfered with, set aside and the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... funds. Section 50 of the Assam VAT Act reads as under. Section 50. Refund- (1) Subject to other provisions of this Act and the rules made thereunder, if it is found on the assessment or re-assessment, as the case may be that a dealer has paid tax, interest or penalty in excess of what is due from him, the Prescribed Authority shall, on the claim being made by the dealer in the prescribed manner and within the prescribed time, refund to such dealer the amount of tax, penalty and interest paid in excess by him; Provided that, such refund shall be made after adjustment of the amount of tax or penalty, interest or sum forfeited or all of them due from, and payable by the dealer on the date of passing of order for such refund. (2) * * * Rules 26 of the Assam VAT Rules, 2005 reads as under. Rule 29. Refund- (1)(a) The application for refund as referred to in sub-section (1) of Section 50 shall be made in Form-37 within one hundred and eighty days from the date of assessment or reassessment, as the case may be. Provided that an application for refund made after the said period may be admitted by the Prescribed Authority, if he is satisfied that the dealer had sufficient cause for not maki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay that had occurred by the petitioner, perhaps there was no occasion for the revisional authority to consider the grounds and render a finding as to whether the same is sufficient or insufficient. Such power under the Act and the Rules is not bestowed upon the revisional authority. Rather it is the assessing authority who is conferred with the powers to grant or reject refund applications beyond the period prescribed upon such consideration of the grounds and reasons mentioned. 15. In the facts and circumstances of the case, it is seen that there is no denial by the respondent department that grounds and reasons were furnished before the assessing authority. Rather From the impugned order dated 25.02.2021 passed by the Revisional authority, it is seen that certain explanations were furnished by the petitioner explaining the delay that had occurred. As such, it is evident that the assessing authority who was required to consider the explanations furnished explaining the delay that had occurred in filing any application for refund did not consider such grounds as the same is not discernable from the impugned order dated 29.08.2019 passed by the respondent No. 4. Coming to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. The words sufficient cause under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. 18. Upon consideration of the facts and circumstances of the case and also the Judgments as discussed above, it is seen that the impugned order dated 29.08.2019 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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