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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 ..... and is covered. 2. Learned counsel for the respondents have fairly conceded that the issue taken up by the petitioners stands covered by the aforesaid judgment. In order to decide these cases, therefore, we would advert briefly to the facts as setup in CWP No.22260 of 2023. 3. Learned senior counsel appearing for the petitioner in CWP No. 22260 of 2023 has also filed written submissions. The petitioner company - Suncity Buildcon Private Limited and other petitioners are engaged in the business of developing residential and commercial projects and registered under the Haryana Value Added Tax Act, 2003 (hereinafter to be referred as "the Act of 2003") as a lump sum dealer. The Haryana Value Added Tax Rules, 2003 (for short, 'the VAT Rules') have been framed under the Act by the State Government and a lump sum scheme under Rule 49 of the VAT Rules has been formulated which is in accordance with the composition as per Section 9 of the Act of 2003. Accordingly, as per Rule 49 of the VAT Rules, a contractor once registered under the said Rules, is liable to pay tax @ 4% of the total value consideration received or receivable for execution of the contract. 4. Admittedly, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in subsequent year. 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. 7. Thus, as per Clause 3 (2), the Scheme was applicable irrespective of the fact that assessments are pending or have attained finality or the assessment orders were pending before any authority under the Act or any Court of law. It essentially means that even those contractors who have not deposited the amount in terms of Rule 49 of the VAT Rules would be entitled to get the benefits of the Scheme. 8. As per Clause 4 of the Scheme, a contractor opting under the scheme shall pay year wise, in lieu of tax, interest or penalty from his business, by way of one time settlement, a lump sum amount @ 1% of the entire aggregate amount, received or receivable for the business carried out during the year, without deduction of any kind along with a surcharge @ 5%, therefore, bringing the total amount to be paid at 1.05% of the amount received or receivable for the business ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners further submitted that even after adjusting the total amount payable under the Scheme, the excess amount is liable to be refunded and even as per Clause 4 (2) of the Scheme, as amended on 02.06.2017, cannot be denied to them and, therefore, being aggrieved by the impugned Clause 4 (2) of the Scheme as originally as well as substituted, the petitioners have preferred these writ petitions assailing the said clause to be in violation of Article 265 of the Constitution and thus, ultra vires. 13. The impugned order is dated 20.01.2017 whereby the refund is denied. It may be pointed out that the order denying refund is same in all the cases, however, the amount is different. 14. Learned counsel for the State has stated that the refund is required to be paid only after adjustment for the tax liability for the remaining years. 15. We have heard learned counsel for the parties. 16. We find that the scheme has been made applicable to all contractors whether they have opted or not opted for the lump sum scheme under Rule 49 of the VAT Rules. Thus, those who had earlier opted for lump sum scheme under Rule 49 of the VAT Rules and were paying @ 4% of the aggregate amount, would be pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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." 18. 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. 19. In CWP No. 22258 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. 5,65,79,692/- but by the impugned order dated 27.01.2017, respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant violation of Article 265 of the Constitution of India and the petitioners are entitled for refund of the same. If Clause 4(2) of the 2016 Scheme is allowed to be retained, the same would be discriminatory and make unequals among equals inasmuch as those, who were defaulters, would be better placed and put to a disadvantageous position and such a construction of a clause would be not sustainable on the anvil of Article 14 of the Constitution of India. 25. Keeping in view our aforesaid findings, we therefore, read down Clause 4 (2) of the Scheme as it originally existed and substituted on 02.06.2017 to be read after deleting the following part of the Clause as under:- "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." 26. Such part of the condition of Clause 4 (2) of the Scheme is held to be ultra vires to Article 265 of The Constitution of India and contrary to the Law as expressed by Hon'ble the Supreme Court in Corporation Bank's case (supra). Accordingly, the orders rejecting the claim of refund dated 20.01.2017 and supplementary order dated 27.01.2017 impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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