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TMI Blog2024 (10) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... mount, if any, was to be deducted. As is manifest on a conjoint reading of Section 35 (2) and 38 (2) of the DVAT Act, as long as objections remained pending with OHA, any amount claimed by the respondent would clearly not answer the description of an amount due or payable as contemplated under Section 38 (2). Respondent, therefore, cannot possibly seek to justify the retention of the refund claim on account of being barred by limitation. The delay in processing the refund is endemic to the DVAT authorities and if the same is considered, the delay, even if any, on the part of the petitioner approaching the authorities is not long. Respondent cannot possibly seek to justify the retention of refund claim on account of its having been deposited voluntarily or being barred by limitation. It is a clear case of unjust retention of the money of petitioner. Respondent clearly appeared to have acted arbitrarily in illegally depriving the petition of the refund as claimed, in flagrant violation of the mandate of Section 38 of the DVAT Act. Grant of interest on refund - HELD THAT:- Interest is the return or compensation for use or retention of another s money. The State having received the mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against demand, if any, raised on account of inspection conducted at their premises on 11.03.2013. 4. The assessment of the Company under the CST Act for AY 2012-13 was framed vide order dated 03.03.2017 creating demand on account of non-furnishing of declaration forms. During the pendency of assessment proceedings and after passing of the assessment order, petitioner deposited an amount of Rs. 52,52,640/- on different dates. Subsequently, petitioner filed objections before the Special Objection Hearing Authority [ SOHA ] for grant of benefit of declaration forms. 5. SOHA vide order dated 08.10.2018, allowed the benefit of declaration forms received and reduced the demands created vide previous assessment order to Rs. 35,71,180/-. Thus, petitioner became entitled to refund of Rs. 16,81,460/- (Rs. 52,52,640 Rs. 35,71,180), being the excess amount deposited by it. 6. Since the amount of Rs. 3,50,00,000/-, initially deposited on 15.03.2013 and the excess amount of Rs. 16,81,460/- were not adjusted/claimed in any of the returns furnished under DVAT Act, petitioner filed applications in Form DVAT-21, claiming refund of the said amount as per the following details:- Tax Period Date of fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that coercion and illegality impugned against the voluntary deposit of the amount of Rs. 3,50,00,000/- in apprehension of future demands that may be raised against the petitioner is an afterthought, for the petitioner admittedly never wrote any letter or made any representation before the respondent claiming that the said voluntary deposit was under any alleged coercion or alleged instructions by the respondent s Officers and rather the petitioner s letter dated 28.03.2013 asking the respondent to adjust the said amount towards pending/future liabilities or demands against the petitioner. It is submitted that delay of five years in claiming refund is attributable on the part of the petitioner. Since the petitioner had been sleeping on its right, he cannot be granted refund after so much delay, refund having been barred by limitation. 14. The factual dispute as to whether the amount of Rs. 3,50,00,000/- was deposited voluntarily or under coercion is of little significance. Undisputedly, the said amount of Rs. 3,50,00,000/- is lying deposited with the respondent since 15.03.2013. As would be manifest from a consideration of Section 38 of the DVAT Act, the claim for refund is to be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) furnish the declaration or certificate forms as required under Central Sales Tax Act, 1956, shall be excluded.]] [(8)] Notwithstanding anything contained in this section, where (a) a registered dealer has sold goods to an unregistered person; and (b) the price charged for the goods includes an amount of tax payable under this Act; (c) the dealer is seeking the refund of this amount or to apply this amount under clause (b) of sub-section (3) of this section; no amount shall be refunded to the dealer or may be applied by the dealer under clause (b) of sub-section (3) of this section unless the Commissioner is satisfied that the dealer has refunded the amount to the purchaser. [(9)] Where (a) a registered dealer has sold goods to another registered dealer; and (b) the price charged for the goods expressly includes an amount of tax payable under this Act, the amount may be refunded to the seller or may be applied by the seller under clause (b) of sub-section (3) of this section and the Commissioner may reassess the buyer to deny the amount of the corresponding tax credit claimed by such buyer, whether or not the seller refunds the amount to the buyer. [(10)] Where a registered dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que for the amount of tax, interest, penalty or other amount to be refunded along with the refund order in Form DVAT-22. PROVIDED that the Commissioner may transfer the amount of refund through Electronic Clearance System (ECS) in the bank account of the dealer. (8) No refund shall be allowed to a person who has not filed return and has not paid any amount due under the Act or an order under section 39 is passed withholding the said refund. (9) Before allowing the claim for refund to a dealer under section 38 of the Act, the Authority concerned shall satisfy himself that the conditions laid down in clause (g) of sub-section (2) of section 9 of the Act are fulfilled. xxxxxx xxxxxx xxxxxx Rule 57. Refund on account of objection The procedure for the refund of any amount due in consequence of an order made pursuant to an objection, or any other proceeding under the Act, shall be that provided in Rule 34. 16. From the bare language of the relevant provisions, we take note that claim for refund is liable to be made in Form DVAT-21, if such refund is not claimed in the return itself. Thus, claim of refund can be made in either of the two modes i.e. through the return or by filing Form DV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - already deposited. Soon thereafter i.e. on 12.10.2018, petitioner submitted form DVAT-21 claiming refund of Rs. 3,50,00,000/-. There is no inordinate delay in submitting the claim for refund after passing of the orders by SOHA. We also take note that Section 38 (2) of the DVAT Act uses the expression recovery of any other amount due under this Act. The Commissioner in terms of Section 38 (2) is entitled to apply any amount found to have been paid by the assessee in excess of the amount due from him before making a refund only if there exists an enforceable demand against the assessee. As is manifest on a conjoint reading of Section 35 (2) and 38 (2) of the DVAT Act, as long as objections remained pending with OHA, any amount claimed by the respondent would clearly not answer the description of an amount due or payable as contemplated under Section 38 (2). Respondent, therefore, cannot possibly seek to justify the retention of the refund claim on account of being barred by limitation. The delay in processing the refund is endemic to the DVAT authorities and if the same is considered, the delay, even if any, on the part of the petitioner approaching the authorities is not long. Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty due is wholly reduced, the amount of interest, if any, paid shall be refunded, or if such amount is varied, the interest due shall be calculated accordingly. (4) Where the collection of any amount is stayed by the order of the Appellate Tribunal or any court or any other authority and the order is subsequently vacated, interest shall be payable for any period during which such order remained in operation. (5) The interest payable by a person under this Act may be collected as tax due under this Act and shall be due and payable once the obligation to pay interest has arisen. 22. In terms of Section 42 of the DVAT Act, a person is entitled to interest from the date the refund was due to be paid or the date when the amount was over paid by the person, whichever is later. 23. Once the tax payer succeeds in upsetting the assessments framed under Section 32 33 of the DVAT Act, which results in vindicating its claim for refund either in part or as a whole as claimed by either furnishing a return or Form DVAT-21, interest under Section 42 (1) (a)of the DVAT Act would be payable from such date as the refund was due to be paid to the tax payer. The expression the date that the refund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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