TMI Blog2015 (3) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... r the question of refund of excess payment in present facts. Subsection (6) of Section 48 states that where any dealer becomes entitled to refund after the appointed date, whether under any earlier law or under this Act, i.e. under 2002 Act mentioned supra, then such refund must be first applied against the amount payable under any earlier law or 2002 Act. If any balance amount is left, that amount can only be refunded to dealer. Thus, Section 48(6) of the 2002 Act, casts obligation upon the respondents to appropriate the excess amount paid by the dealer in any previous year towards its demand in subsequent year. This obligation imposed by Section 48(6) is being violated in present matters. It is apparent from the facts that though asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utshell the submission is, in returns filed for said period, the petitioners have asked for refund which is approximately same as that of quantum of tax assessed for the next year i.e. for the period from 01.04.2008 to 31.03.2009. The grievance is, as assessment for the period from 01.04.2007 till 31.03.2008 is not being finalized, the exact amount to be returned to the petitioners has still not been crystallized and, therefore, cannot be technically used to claim set off against later demand. 4. Shri Bhattad, learned counsel submits that if this exercise is completed and exact amount of set off is worked out, Section 48(6) enables the petitioners to claim set off for that amount for the tax found payable in immediately next year. If thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007-08 is not being finalized. 6. The learned Government Pleader submitted that the respondents should be given time to finalize assessment for the year 2007-08. She also attempted to rely upon a Trade circular to urge that after assessment, if any amount is found refundable, the petitioners must apply for refund and after such application only, the amount can either be refunded or allowed to be set off by adjusting it against the subsequent demand. She also pointed out that Trade circular restricted this facility to particular years and as such the petitioners cannot now in present matter seek such refund or set off. 7. The judgments shown to this Court are not in dispute. The statement made by the State Government and accepted by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intent behind incorporating Section 48(6) in statute and denies advantage of a beneficial provision meant for assessee to it. 8. In this situation, interests of justice can be met by directing the respondents to complete the assessment proceedings for the year 2007-08 within a period of six weeks from today. The amount found refundable to the petitioners shall then be appropriately dealt with in accordance with law under Section 48(6) noted supra. The consequences of such appropriation can be examined in appeals which are preferred by the petitioners challenging subsequent levy of tax, interest and penalty for the year 2008-09. 9. Thus, leaving said question open and with above directions, we allow the petitions and dispose of the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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