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TMI Blog2024 (11) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ petition i.e. WP(C) No. 1430/2017 is directed against the order dated 16.11.2016 passed by the Assistant Commissioner of Taxes, Guwahati, whereby the refund claims made by the petitioner under the Assam Value Added Tax Act (AVAT), 2003 and Assam Value Added Tax Rules, 2005 were rejected as being time barred. The petitioner is a Public Limited Company incorporated under the Companies Act, 1956, having its registered office at L&T house, N.M. Marg, Ballard Estate, Mumbai-400001. The petitioner carries on the business of execution of works contract of various natures at different places within the country awarded by the various authorities of the Central Government as well as the State Government of different States. The petitioner company is also having its office in Assam at Milanpur Road, Bamunimaidam, Guwahati-781021. The petitioner is represented by its Assistant Manager (Indirect Taxes) in the present proceedings. The petitioner carries on its business within the State of Assam which is registered under the Assam Value Added Tax Act, 2003 bearing Identification No. (TIN) 18410028777. Being a registered Company, the petitioner submits its returns regularly before the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt proceedings for the assessment year 2006-07, the petitioner filed a refund application seeking refund of the taxes paid in excess. The said application for refund was filed under Form-37 as prescribed under the Assam Value Added Tax Rules, 2005 and was submitted by the petitioner under cover of its letter dated 28.10.2016. The said refund application, however, came to be rejected by the impugned communication No.3309 dated 16.11.2016 rejecting the refund application filed by the petitioner. The Department rejected the application on the ground of the said being time barred under the provisions of the Assam Value Added Tax Act, 2003 read with the Rules, 2005. Being aggrieved, the present writ petition has been filed putting to challenge the rejection made by the respondent authorities of the claim for refund which the petitioner claims to be entitled to under the AVAT Act and Rules, 2005. 6. The refund application dated 31.03.2016 was filed by the petitioner by which the petitioner claims refund of Rs. 8,03,660/- for the assessment year 2007-08. However, the same was also rejected by the Department by its communication dated 2245 dated 15.09.2016 and the same is also challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he refund application came to be rejected by the impugned order dated 16.11.2016 on the ground of being time barred. It is urged by the learned counsel for the petitioner that the delay, if any, that may have occurred in filing the refund is because of lack of information or intimation by the Department pursuant to the issuance of notice for the assessment proceeding which the Department did not carry forward. It is submitted that under such circumstances, when an assessee is served with a notice for the assessment proceedings pursuant to filing of its returns and where the assessee had also responded to the said notice by filing necessary representation, the assessee is entitled to be intimated about the status of such proceedings and any order(s) passed by the Department. It is submitted that no such orders were ever passed and/or was the petitioner intimated about the outcome of such proceedings undertaken. It is only thereafter the petitioner had filed the refund application being unaware as to the status of the assessment proceedings. The said refund application filed by the petitioner was rejected by the Assessing Officer compelling the petitioner to approach this Court by fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refund claims made. 10. Learned counsel for the petitioner has also referred to the judgment rendered by the Hon'ble Tripura High Court passed in WP(C) No.139/2021 (M/s Nandini Impex Pvt. Ltd. vs. The State of Tripura & 3 Ors.) in support of his contentions. 11. Mr. B. Choduhury, learned Standing Counsel, Finance & Taxation Department appearing for respondents strongly disputes the submissions made by the learned counsel for the petitioner. He submits that the Department has contested the writ petition by filing an affidavit-in-opposition. Referring to the said affidavit the Department submits that under the provisions of Rule 29 of the Assam Value Added Tax Rules, 2005 where the amount of refund is more than 3 (three) lakhs, the refund is to be considered by the Higher Officers. In the present case, as the refund sought for was more than 10 (ten) lakhs, the Deputy Commissioner of Taxes forwarded the application to the Commissioner of Taxes. The Commissioner of Taxes upon perusal of the application and upon due consideration of the provisions of Rule 29 of the Assam Value Added Tax Rules, 2005 rejected the application. The learned Standing Counsel for the Department submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manner prescribed. Provided that 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 such adjustment shall first be deducted from such refund before adjustment". "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 making the application within the said period. (b) An application for refund shall be signed and verified as in the case of application for registration in case of a registered dealer. (c) The Prescribed Authority may reject, any claim for refund if the claim filed appears to involve any mistake apparent on the record or appears to be incorrect or incomplete, based on any information available on the record, after giving the dealer the opportunity to show cause in writing against such rejection. (d) When the Prescribed Authority is sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pursuance of assessment orders, all applications for refunds and of the order passed thereon". 14. Having noticed the provisions extracted above, it is evident that the Rule 29 clearly prescribes the period before which the refund claims are required to be filed. However, proviso to Rule 29 (1) (a) empowers the prescribed authority to admit an application for refund beyond the period prescribed, namely, 180 days from the date of assessment or reassessment, if the authority is satisfied that the sufficient cause has been made out to justify the delay for not making the application within the said period. 15. From a perusal of the impugned orders it is evident that the refund applications were rejected on the ground that these were time barred. Impugned orders do not reflect that the petitioner was given any notice to explain the cause of delay. The affidavit-in-opposition filed by the respondents also does not explain the position as to whether the petitioner was put to notice and given an opportunity to explain the reasons for the delay in filing the refund applications prior to issuance of the impugned orders. 16. There is no dispute also that claims for refund sought for by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional law, it means that the Englishmen whose labours gradually formed the complicated set of laws and institutions which we call the Constitution, fixed their minds far more intently on providing remedies for the enforcement of particular rights or for averting definite wrongs, than upon any declarations of the Rights of Man or Englishmen....The Constitution of the United States and the Constitutions of the separate States are embodied in written or printed documents, and contain declaration of rights. But the statesmen of America have shown an unrivalled skill in providing means for giving legal security to the rights declared by American Constitutions. The rule of law is as marked a feature of the United States as of England. (ii) social justice is a pervasive presence; and so, save in special situations it is fair to be guided by the strategy of equity by asking those who claim the service of the judicial process to embrace the basic rule of distributive justice, while moulding the relief, by consenting to restore little sums, taken in little transactions, from little persons, to whom they belong." 18. This Court takes note of the judgment and order dated 20.01.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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