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2006 (5) TMI 458

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..... s for both the years vide separate orders dated August 20, 2004. As per the assessment orders, an excess amount of Rs. 10,470 and Rs. 4,59,409 was found to have been paid by the petitioner for the assessment years 1998-99 and 1999-2000, respectively. Since the refund vouchers did not accompany the order of assessment, the petitioner moved an application for refund of the amount in question on January 10, 2005 and when still the amount was not refunded, the petitioner approached this court by filing the present petition. In reply to the petition, the stand of the respondents is that admittedly refunds of Rs. 10,470 and Rs. 4,59,409 were found to be due to the petitioner as per the assessment orders but refund vouchers were not sent along .....

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..... ay be filed. Sd/(Ashok Sukhija) Taxation Inspector, 14-07-2005 As proposed the application is filed Sd/(Sewa Singh) Assessing Authority, 14-07-2005. We have heard Sh. Avneesh Jhingan, counsel for the petitioner and Sh. Suresh Monga, Senior Deputy Advocate-General, Haryana for the respondent and with their assistance have perused the paper book. The provisions of the Act and the Haryana General Sales Tax Rules, 1973 (for short, the Rules ) relevant for consideration of the present case are extracted below: Section 41. Review. (1) An Assessing Authority or any person considering himself aggrieved by an order of the Tribunal or any officer above the rank of an Excise and Taxation Officer under this Act and who, from the di .....

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..... ntitled to interest at such rates and on such terms and conditions as may be prescribed. Rule 35. Refund [section 43]. (1)(a) While framing the assessment of a dealer, the Assessing Authority shall, after such scrutiny of its record and after making such enquiries as it considers necessary, determine the amount paid by him, in excess, if any, and thereafter direct the refund of such amount as may remain after deducting any amount due from him. The Assessing Authority shall then issue to the dealer at his option a refund payment order in form STR No. 34 prescribed under the Punjab Subsidiary Treasury Rules or refund adjustment order in form ST 34 and send it along with the assessment order. (b) Where a refund of any amount paid by any .....

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..... thority on report made by the Taxation Inspector, as is evident from the text thereof extracted above. It has not been clarified in the reply filed by the respondents or at the time of arguments as to under which provision of the Act the power was exercised by the Taxation Inspector or the Assessing Authority to reject the application of the petitioner for refund of the amount which was found due as per the assessment order. The Assessing Authority is not entitled to sit over the order of assessment framed by his predecessors. A perusal of the office noting proposing rejection of the claim of refund of the petitioner shows that the reliance was placed on the amendment in section 15A of the Act on August 14, 1997 to non-suit the petitioner. .....

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..... (P) Ltd. v. State of Haryana [2002] 125 STC 32, wherein it was held as under: A perusal of rule 35 shows that the Assessing Authority has to directly refund the amount which 'may remain after deducting any amount due from' the assessee. It is the admitted position that on July 10, 1992, the amount of Rs. 1,05,832 was due to the petitioner. It is also not disputed that the demand of Rs. 44,938 was also made at the same time. Thus, the amount of Rs. 60,874 had to be refunded to the petitioner. After the passing of the order of assessment, which was conveyed to the petitioner on August 25, 1992, there was no outstanding amount, which may be due from the assessee. In terms of rule 35, it was incumbent upon the Assessing Authority t .....

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