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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 ..... petitioner and asked the petitioner to give a payment of Rs. 3,50,00,000/- to meet the target of Revenue, which was deposited vide challan dated 15.03.2013. Petitioner vide letter dated 28.03.2013, intimated the respondent about the amount deposited and gave instructions that the amount be retained as payment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interest payable as per Section 42 of the DVAT Act for delay in processing the refund contrary to the settled law as enshrined in Swarn Darshan Impex (P) Ltd. Vs. Commissioner, Value Added Tax & ANR [(2010) 8 VSTI B-467 (Del.)], Prime Papers & Packers Vs. Commissioner of VAT & Anr. [W.P.(C) 6013/2016] and others. 13. Per contra, learned counsel for the respondent has argued 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays from the date the dealer furnishes the security to his satisfaction under sub-section (5). [(7) For calculating the period prescribed in clause (a) of sub-section (3), the time taken to - (a) furnish the security under sub-section (5) to the satisfaction of the Commissioner; or (b) furnish the additional information sought under section 59; or (c) furnish returns under section 26 and section 27; or (d) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38). (5A) The order for withholding of refund/furnishing security under section 39 shall be issued in Form DVAT-22A. (6) Where a refund order is issued under sub-rule (5), the Commissioner shall, simultaneously, record and include in the order any amount of interest payable under sub-section (1) of section 42 for any period for which interest is payable. (7) The Commissioner shall forthwith serve on the person in the manner prescribed in rule 62, a cheque 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jections filed by the petitioner before SOHA were decided vide order dated 08.10.2018. The instruction given by the petitioner while depositing the amount of Rs. 3,50,00,000/- was that the said amount be retained as payment against demand if any raised on account of inspection conducted at their premises on 11.03.2013. The cause of action for claiming refund accrued only after passing of orders by SOHA, when it was found that no further tax was payable or to be adjusted out of Rs. 3,50,00,000/- 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be excluded from the period for which the interest is payable. (2) When a person is in default in making the payment of any tax, penalty or other amount due under this Act, he shall, in addition to the amount assessed, be liable to pay simple interest on such amount at the annual rate notified by the Government from time to time, computed on a daily basis, from the date of such default for so long as he continues to make default in the payment of the said amount. (3) Where the amount of tax including any 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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