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TMI Blog2024 (5) TMI 1325X X X X Extracts X X X X X X X X Extracts X X X X ..... SARASWATI ABHARANSALA AND ANOTHER [ 2008 (11) TMI 387 - SUPREME COURT] Hon ble the Supreme Court has held ' If the substantive provision of a statute provides for refund, the State ordinarily 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.' Thus, from the reading of the aforesaid judgment, it could be concluded that the conditions laid down under Clause (4) of the 2016 Scheme seek to create unjust enrichment in favour of the Revenue and unjustifiable clause having no nexus. It seeks to create a distinction and also benefits those contractors who had not been honestly paying their taxes which is disadvantageous to those contractors who had been regularly paying @ 4% tax in terms of Rule 49 of the VAT Rules. The orders rejecting the claim of refund dated 20.01.2017 and supplementary order dated 27.01.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received or receivable for execution of the contract. 4. Admittedly, the petitioners have been registered under Rule 49 of the VAT Rules and accordingly have been depositing tax @ 4% of its total turn over excluding the value of the land as a lump sum dealer. 5. The Government of Haryana introduced the Haryana Alternative Tax Compliance Scheme for Contractors, 2016 (hereinafter to be referred as the Scheme ) vide notification dated 12.09.2016 in order to expedite the tax, interest and penalty or other dues under the Act of 2003 for all contractors. As per Section 3 of the Scheme, the Scheme would be applicable to all contractors whether they have or they have not registered for lump sum scheme under Rule 49 of the VAT Rules. The Scheme was applicable upto 31.03.2014. It would be apposite to quote Clause 3 (1) and (2) of the Scheme which is relevant for the present purpose and reads as under:- 3. Scope of Scheme (1) This Scheme shall apply to all contractors, whether they have or have not opted for lump sum scheme under rule 49 of the Haryana Value Added Tax Rules, 2003. (2) This Scheme shall apply irrespective of the fact that assessments are pending or have attained finality or as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.05% of the amount received or receivable for the business carried out during the year. As per Clause 4(2) of the Scheme, any excess amount less after the adjustment of the tax liability shall not be refunded or allowed to be adjusted against any other tax liability on the expiry of the scheme. The Scheme was to expire within ninety days from the date of notification i.e. 12.09.2016, however, Clause 4 (2) of the Scheme vide notification dated 02.06.2017 was substituted, which is as under:- (2) No input tax credit on purchase of goods shall be admissible to the contractor under this Scheme. The liability under this Scheme shall also be irrespective of the liability of the subcontractor under the Act. However, if the tax, interest or penalty already paid by him during the year covered under this Scheme exceeds the lump sum amount payable as per sub-clause (1) of clause 4 above, the excess amount shall be adjusted against the total amount due and payable under the Scheme. Any excess amount left after such adjustments shall neither be refunded nor allowed to be adjusted against any other tax liability on the expiry of this Scheme. 9. It was submitted by learned senior counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paying @ 4% of the aggregate amount, would be placed in a disadvantageous position vis- -vis those who did not even deposit the amount earlier and had not opted under Rule 49 of the VAT Rules. It is also noticed that the State has modified the rate of composition @ 1% with retrospective effect for all. 17. In Corporation Bank s case (supra) Hon ble the Supreme Court has held as under:- 18. Sales tax is leviable on sale of goods. It must be collected by the dealer as an agent of the State at such rate as may be specified. Neither the State nor the agent is entitled to collect tax at a rate higher than specified. The Kerala General Sales Tax Act, 1963 also contains a provision for refund in Section 44 thereof which reads as under :- Refund:- (1) When an assessing authority finds at the time of final assessment, that the dealer has paid in excess of what is due from him, it shall refund the excess to the dealer. (2) When the assessing authority receives an order from any appellate or revisional authority to make refund of tax or penalty paid by a dealer it shall effect the refund. (3) Notwithstanding anything contained in sub-section (1) and (2), the assessing authority shall have pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 27.01.2017, respondent no.2 has denied the refund of the excess amount and relied upon Clause 4 (2) of the 2016 Scheme. 20. It is noticed that the petitioner in CWP No. 22260 of 2023 has stated that he had applied under the Scheme with regard to assessment for the Financial Year 2007-2008 to 2013-2014 vide Form TC-1. The application was accepted and the respondents concluded that the petitioner had deposited excess amount of Rs. 5,39,51,781/- but by the impugned order dated 27.01.2017, respondent no.2 has denied the refund of the excess amount and relied upon Clause 4 (2) of the 2016 Scheme. 21. In CWP No. 22265 of 2023, it has been stated that the petitioner had applied under the Scheme with regard to assessment for the Financial Year 2003- 2004 to 2013-2014 vide Form TC-1. The application was accepted and the respondents concluded that the petitioner had deposited excess amount of Rs. 16,83,89,177/- but by the impugned order dated 27.01.2017, respondent no.2 has denied the refund of the excess amount and relied upon Clause 4 (2) of the 2016 Scheme. 22. In CWP No. 22268 of 2023, it has been stated by the petitioner that the petitioner company had applied under the Scheme with r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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