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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 ..... 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. There is no dispute also that claims for refund sought for by the petitioner is also not disputed by the respondent Department denying the claims that the petitioner is otherwise not entitled under the law to claims the refund. The notices issued for the proceedings that the assessment by the Department which are referred to in the writ petitions are also not disputed by the Department. Under such circumstances, it is evident that the Department did initiate a proceeding for assessment which, however, was not carried out for the reasons best known to the Department. The impugned orders dated 16.11.2016, 15.09.2016 and 07.01.2017, therefore, are set aside. The matter is remanded back to the concerned respondent(s)/prescribed authority and this Court permits the asessee to explain the causes of delay that may have occurred in filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was excess tax paid by the petitioner to the tune of Rs. 2,28,58,239/- (Rupees Two Crores Twenty Eight Lakhs Fifty Eight Thousand Two Hundred and Thirty Nine) only. The said excess tax was paid on the account of tax already deducted at source by the VAT Authorities. 5. It is submitted that the petitioner was served with a notice being Notice No.1163 dated 28.05.2009 requiring the petitioner to appear in audit assessment proceedings contemplated under Section 36 of the Assam Value Added Tax Act, 2003. The said notice was issued proposing to take up audit assessment for 2 assessment years, namely, assessment year 2005-06 and 2006-07. The petitioner responded to the said notice by filing representation dated 03.06.2009 intimating the authorities that for the assessment 2005-06 assessment was initiated and completed by the competent officer and an assessment order in that respect was passed on the basis of the audit assessment proceedings. Pursuant to the said representation filed by the petitioner, no further proceedings was initiated by the Department nor any information to that effect was furnished to the petitioner in spite of enquiries made by the petitioner on number of occa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3033 dated 07.01.2017 by the respondents authorities as being time barred. These rejection orders are put to challenge by the petitioner by filing WP(C) No. 2844/2017 WP(C) No. 2833/2017. 7. It is submitted by the learned counsel for the petitioner that earlier for the assessment year 2010-11, when the petitioner had submitted its refund claims as no order was passed by the Department the petitioner had approached this Court by filing WP(C) No. 293/2017 praying for a direction to the respondents to pass appropriate orders. Subsequently, by order dated 03.03.2017, the writ petition came to be disposed of upon the submissions made by the State Counsel that the refund application has been rejected by the Department. The Coordinate Bench of this Court while disposing of the writ petition directed the respondent authorities to furnish a copy of such an order on the petitioner and granted liberty to the petitioner to challenge the said order, if so advised and accordingly, the petitioner has approached this Court challenging the impugned orders rejecting the refund claims filed by the petitioner. 8. It is submitted by the learned counsel for the petitioner that though initially notices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned counsel for the petitioner submits that there is no dispute that the petitioner is entitled to refund of excess value added tax paid. Under such circumstances, the lawful claim of the petitioner towards excess tax paid cannot be denied by the Department without putting the petitioner to notice and affording an opportunity to be heard before rejecting its refund application by way of impugned order. Referring to the Rule 29 of the Assam Value Added Tax Rules, 2005, learned counsel for the petitioner submits that ordinarily an application for refund in the prescribed form is to be filed within 180 days from the date of the assessment or reassessment. Such an application for refund can be admitted by the prescribed authorities if he is satisfied that the delay has sufficient cause for not making the application within the said period. It is submitted by the learned counsel for the petitioner that no opportunity of explaining the delay was afforded to the petitioner as no notice was served to the petitioner before the impugned orders dated 16.11.2016, 15.09.2016 and 07.01.2017 were issued rejecting the claim of the petitioner. Learned counsel for the petitioner, therefore, subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turns along with the audit report. It is submitted that for the assessment years 2009-10 and 2010-11 the period of audit assessment prescribed expired on 31.03.2015 and 31.03.2016 respectively. Therefore, the Departmental Authorities rightly rejected the refund claims. It is submitted that there is no infirmity in the impugned orders dated 16.11.2016, 15.09.2016 and 07.01.2017 which call for interference in the present proceedings and the writ petitions should, therefore, be dismissed. 12. Learned counsel for the parties have been heard and the pleadings available on records have been carefully perused. 13. Before proceeding further in the matter the reference of Section 50 and Rule 29 of the AVAT Act, 2003 and AVAT Rules, 2005 are necessary to be referred to. Section 50 and Rule 29 of the AVAT Act, 2003 and AVAT Rules, 2 reads as under 50. Refund : (1) Subject to other provisions of this Act and the rules made hereunder, if it is found on the assessment or reassessment, as the case may be, that a dealer has paid tax, interest or penalty in excess of what is due from him, the Prescribed Authority shall, on the claim being made by the dealer in the prescribed manner and within the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roval. Where the amount to be refunded is more than fifty lakhs, the Commissioner shall take prior approval of the Government before sanctioning such refund. (f) When an order for refund is passed refund voucher in Form-38 shall be issued in favour of claimant if he desires payment in cash and advice in Form39, shall, at the same time be forwarded to the Treasury Officer concerned. (g) Where any amount refundable under this sub-rule is not refunded to the dealer within the period of ninety days of claim of refund made in accordance with the provisions of clause (a) of this subrule, the refund voucher shall include the interest specified under section 52 covering the period following the end of the said period to the day of refund. The authority issuing such order shall simultaneously record an order sanctioning the interest payable, if any, on such refund, specifying therein, the amount of refund, the payment of which was delayed, the period of delay for which such interest is payable and the amount of interest payable by the State Government and shall communicate the same to the Commissioner stating briefly the reasons for the delay in allowing the refund: Provided that in computi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not carried out for the reasons best known to the Department. 17. Under such circumstances, it would have been appropriate for the Department to pass necessary orders after issuance of notice to explain the cause of delay. being filed by the asessee. The Department was required to intimate the assessee about the progress or culmination of any such assessment proceedings pursuant to issuance of any such notice. Tax is a compulsory exaction of money by the State which must be duly authorized by law. Where under the prescribed law it is found that certain amount is payable and refundable to the assessee, it is not expected that the State will withhold such refunds by raising a technical plea of the claims of being time barred, that too, without affording any opportunity to the assessee to explain the reason of delay which according to the Department has occurred in filing the claims for refund. In this context, the judgment passed by the Hon ble Supreme Court in M/s. Shiv Shankar Dal Mills and Ors. vs. State of Haryana and Ors. reported in (1980) 21 SCC 437 is considered to be relevant for this purpose. In the said judgment Hon ble Mr. Justice V.R. Krishna Iyer while deciding an is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to notice and as such, step was not undertaken by the respondent authority before issuing the impugned orders, it was held that the matter will require consideration at the hand of the respondent authority. 19. In view of the above, the impugned orders dated 16.11.2016, 15.09.2016 and 07.01.2017, therefore, are set aside. The matter is remanded back to the concerned respondent(s)/prescribed authority and this Court permits the asessee to explain the causes of delay that may have occurred in filing the refund application. These reasons if and when furnished by the asessee will be duly considered by the prescribed authority and thereafter, if it is found that the petitioner has paid excess value added tax then the authority will process the refund application after consideration of the explanation as may be submitted by the assessee explaining the delay and thereafter, shall pass appropriate orders. Any such order(s) that may be passed, copies thereof shall be served to the assessee. The entire exercise is directed to be completed within a period of 60 (sixty) days from the date of receipt of such condonation of delay application along wtih a certified copy of this order. 20. The wr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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