TMI Blog2021 (12) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... eeds so collected are assigned to the State Government and retained by it in view of Section 9(3) of the CST Act. Section 8 of the CST Act provides for the rate of tax. It is the admitted position as appears from record that the purchasing HSD oil dealer /petitioners as well as IOCL/the selling dealer in West Bengal have registered themselves under the Central Sales Tax Act and the declared goods are certified in the certificate of registration of the petitioner as well as purpose for purchase has also been certified, petitioners are entitled to concessional rate of tax under Section 8 (1) of the CST Act, 1956 since the IOCL/selling dealer has obtained from the petitioner/purchasing dealer the declaration in the prescribed form duly filled and signed by them containing the particulars of the goods that were ordered/purchased/supplied under a certain specific order and all the purpose mentioned and the goods are covered by the registration certificate of the purchaser/petitioner under the CST Act - Since the petitioners have submitted the C Forms to the respondents State Government of West Bengal through the selling dealer/IOCL relating to inter-State sale in question during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion disposed off. - W.P. A No. 5306 of 2021 WPA No. 5307 of 2021 WPA No. 5603 of 2021 WPA No. 5864 of 2021 WPA No. 5866 of 2021 WPA No. 5868 of 2021 WPA No. 6424 of 2021 WPA No. 6737 of 2021 WPA No. 6740 of 2021 WPA No. 13174 of 2021 WPA No. 13175 of 2021 - - - Dated:- 6-12-2021 - Hon ble Mr. Justice Md. Nizamuddin For the Petitioners in WPA 5306 of 2021 WPA 5307 of 2021 :- Mr. Kavin Gulati, Sr. Adv. Mr. Mr. Sumit Gadodia, Adv. Mr. Ajay Aggarwal, Adv. Mr. Avra Mazumdar, Adv. Mr. Ritesh Kr. Gupta, Adv. Ms. Shilpi Saudil, Adv. Ms. Riya Bhattacharjee, Adv. Mr. Sumit Jha, Adv. Mr. Tapan Bhanja, Adv. For the Petitioners in WPA 5603 of 2021, WPA 5864 of 2021, WPA 5866 of 2021, WPA 5868 of 2021, WPA 6426 of 2021, WPA 6737 of 2021, WPA 6740 of 2021, WPA 13174 of 2021, WPA 13175 of 2021 :- Mr. Kavin Gulati, Sr. Adv. Mr. Mr. Sumit Gadodia, Adv. Mr. Ajay Aggarwal, Adv. Mr. Avra Mazumdar, Adv. Mr. Sudeshna Mazumder, Adv. Mr. Ritesh Kr. Gupta, Adv. Ms. Shilpi Saudil, Adv. Ms. Riya Bhattacharjee, Adv. Mr. Sumit Jha, Adv. Mr. Tapan Bhanja, Adv. For the Respondent No. 4 :- Mr. Jaweid Ahmed Khan, Adv. Mr. Bhaskar Sengupta, Adv. Mr. Talha Ahmed Khan, Adv. Mr. Sourav Chunder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ales Tax Rules, 1956 and whether in view of Rule 12 (7) of the CST Rules, 1956 and under the aforesaid Act and Rules there is any specific or complete statutory bar in filing the C Forms belatedly at the stage of assessment proceeding? (3) Whether on the facts and in the circumstances of the case impugned assessment order is bad in law to the extent of refusal to accept the C Forms relating to relevant disputed period causing denial of concessional rate of tax to the petitioners on purchase of HSD oil during the relevant period in course of Inter-State sale in spite of admitted position and specifically recording by the assessing officer in its impugned assessment order that the C Forms in respect of the relevant period were submitted before him and conditions for entitlement of concessional rate of tax are fulfilment of conditions under Section 8 (1) of CST Act, 1956 and though ground for refusal to accept the relevant C Forms is that the same were not filed along with return and that the IOCL had not filed revised return in this regard but nowhere it has specifically recorded or held in the impugned assessment order that ground for non acceptance of C Forms by him is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified in not refunding the tax collected by it from the petitioners through IOCL in excess of concessional rate by ignoring and disregarding that the excess amount of tax/full rate of tax which were paid by the petitioners was due to compelling extra ordinary circumstances of non-issuance of C Forms by the purchasing State Governments during the relevant period on the basis of relevant notification issued by them and C Forms for the relevant period were issued in favour of the petitioners by the purchasing State Government belatedly only after the said notification was quashed by the Hon ble High Court of Jharkhand with further order giving liberty to the petitioners to recover the tax paid in question in excess of concessional rate of tax during the relevant period either from the selling dealer/IOCL in West Bengal or from the State Government of West Bengal and it is matter of record that after the SLP of the State Government of Jharkhand was dismissed by the Hon ble Supreme Court against the said order of the Hon ble Jharkhand High Court, the C Forms in question were issued and by the time C Forms were issued by the respective purchasing State Governments time to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are as follows: Writ Petitioners are purchasing dealers of HSD oil and are registered under the Central Sales Tax Act, 1956 (hereinafter referred to as CST Act ) and their Certificate of Registration in Form B under the Central Sales (Registration and Turnover) Rules, 1957 (hereinafter referred to as CST Rules ) provide for the purchase of High Speed Diesel Oil (hereinafter referred to as HSD Oil ) against C Forms at a concessional rate of tax which were belatedly submitted during the course of impugned assessment proceeding though not along with return by IOCL due to compelling exceptional circumstances beyond the control of the petitioners. According to the petitioners prior to 01.07.2017 petitioners were purchasing HSD Oil (for the purpose of use in manufacturing and/or processing of goods for sale and/or use in mining) from IOCL in the State of West Bengal for their Units situated in the State of Jharkhand at a concessional rate of tax under the CST Act, 1956, in course of inter-State sale, from the State of West Bengal at concessional rates of tax under Section 8(1) read with 8 (3) and 8(4) of the CST Act, 1956, against the issue of C Forms to IOCL prior to 1.7.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchasing State for issuance of C Forms in favour of purchasing dealers/petitioners and further holding that the petitioners would be entitled to claim refund of the excess tax collected either by the Oil selling Companies/IOCL or from the State Government concerned, as would appear on perusal of Paragraph 27 of the said judgment against which Respondent State Government of West Bengal could have filed Appeal before the Hon ble Supreme Court if so aggrieved though it was not a party to the said proceeding before the Hon ble Jharkhand High Court but it did not file. Special Leave Petition (Civil) Diary No. 7966 of 2020 filed by the State of Jharkhand against the aforesaid final judgment and order of Hon ble High Court of Jharkhand was also dismissed by the Hon ble Supreme Court by order dated 13.09.2021. The Hon ble High Court of Orissa in W.P. (Civil) No. 23585 of 2017, by its final judgment and order dated 12.12.2018 also passed a similar order in favour of the Petitioner No. 1 with respect to the similar Circular dated 17.08.2017 issued by the State of Orissa. IOCL filed Review Petition before the Hon ble High Court of Jharkhand primarily contending that it is only the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance of statutory Form C by the authority of the State of West Bengal, claim of refund of differential tax due to the petitioner no. 1 has incorrectly and illegally denied to the petitioner no. 1, for no fault of the petitioner no. 1. (iii) For that it is submitted that the reasoning regarding non issuance of Invoice at the concessional rate of tax by IOCL to petitioner as given in the Assessment Order is untenable in the eyes of law inasmuch as the same fails to take into consideration the effect of the Provisional Credit Notes issued by the IOCL to petitioner no. 1. As such, this reason has no legs to stand in the eyes of law and ought to be rejected as without any substance or merit. (iv) For that it is submitted that the other and further reasoning given in the Assessment Order regarding non filling of revised returns by IOCL is also not sustainable in the eyes of law. This is so as non submission of revised returns cannot jeopardize the legitimate substantive claim of another party, which is going to be directly affected by the action/non-action of another party, on which it has no control. Further, in any case, such technical plea cannot defeat the substantive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods at concessional rate and even in terms of Section 8 (3) read with Section 8 (4) of the CST Act, Declaration Form C has been duly furnished by the petitioner no. 1 to Respondent-IOCL, which was, in turn, deposited by IOCL with the authority of the State of West Bengal. Thus, the petitioner no. 1 and/or Respondent-IOCL have fulfilled all conditions pertaining to concessional sale or purchase and merely because, at the time of raising of Invoices, under compelling circumstances, tax was charged at full rate, cannot be considered as a valid ground for denying the benefit of refund to the petitioner no. 1 of the differential tax, as, admittedly, the petitioner no. 1 was entitled to purchase H.S.D oil at concessional rate. (x) For that Assessing Officer failed to appreciate that the issue as to whether the petitioners/petitioner is/are entitled to claim refund of the differential tax, which was realized and deposited by Respondent-IOCL to the State of West Bengal, is no longer res integra, as the Hon ble Orissa High Court has held that the petitioner no.1/petitioner is/are entitled for refund of the amount, which was collected from the Petitioner no.1 in the circumstances na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of Certiorari for quashing/setting aside the assessment order dated 30.06.20210 passed by Respondent No. 2 in the case of IOCL pertaining to the Assessment Year 2017-18, to the extent submission of Additional Form C by Respondent- IOCL pertaining to the petitioner no. 1 has been denied in having consequential effect of denying the benefit of refund of the excess differential tax to the petitioners and borne by it and stands paid to the Respondent/State of West Bengal; and (b) For issuance of appropriate writ/order/direction, including a Writ, in the nature of Mandamus, directing the Respondent-State of West Bengal to consequentially refund the amount of ₹ 13,85,00,494.21/- being the amount of excess differential tax realized from the petitioners by IOCL and deposited with the State of West Bengal in respect of purchase of HSD oil, which the petitioners are entitled under law without any controversy and, (c) Rule Nisi in terms of prayer (a) and (b) above, and; (d) Such further and/or other order or orders be passed and/or direction or directions be given as to this Hon ble Court may deem fit and proper in the facts and circumstances of the present case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion has been done at the full rate of tax under Section 8 (2) of the CST Act. Accordingly, the taxing authority has accepted such sale being sales under Section 8 (2) of the CST Act and as such there has been no payment for excess tax or illegal tax which has been imposed by the State. The only way to claim concession on the rate of tax according to State Respondent is under the Provision of the CST Act and the Rules. There is completely discrepancy between the return, the invoices in support of the return and C Form. The writ petitioner is attempting to create a cloud on the said transaction. Any concession which IOCL was required to make is a contractual obligation of the IOCL and the writ petitioner. The State of West Bengal cannot be a party to the same. Rule 8(2A) of the CST (West Bengal) Rules, 1958 which provides that every dealer registered under the Act, other than those referred to in sub-rule (1) and sub-rule (2) shall, in accordance with the West Bengal Sales Tax Act, 1994 and/or the Value Added Tax Act, 2003, and Rules made thereunder shall furnish a return quarterly in Form-1 in respect of his turnover as referred to in Rule 11 of the Central Sales Tax (Registratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Also, the petitioners should indemnify IOCL against all future liability arising from refund to them in the peculiar exceptional circumstances of these cases and no adverse effect should fall upon IOCL for any refund so made. (ii) The refund to the petitioners, by the State Respondents, in the circumstances of these cases, would mean unconditional acceptance of the claim for concessional rate of tax supported by the declaration forms furnished by the petitioners. Such acceptance would result in excess payment by IOCL which may be refunded directly to the petitioners and in such case IOCL shall have no claim over such refund. In case refund is made to IOCL, IOCL would be obliged to and shall make the said refund to the petitioners. (iii) While making the refund, the actual amount refundable to each of the petitioners has to be carefully ascertained by the State Respondents, preferably after hearing both the petitioners and IOCL. The amounts of refund claimed in these writ petitions, which relate only to the relevant assessment year 2017-18, are excessive. The major reason for the difference in claim for 2017-18 is, perhaps, that the petitioners have mingled the figures of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all sales [of goods other than electrical energy] effected by him in the course of inter-State trade or commerce during any year on and from the date so notified: [Provided that a dealer shall not be liable to pay tax under this Act on any sale of goods which, in accordance with the provisions of sub-section (3) of section 5 is a sale in the course of export of those goods out of the territory of India.] (1A) A dealer shall be liable to pay tax under this Act on a sale of any goods effected by him in the course of inter-State trade or commerce notwithstanding that no tax would have been leviable (whether on the seller or the purchaser) under the sales tax law of the appropriate State if that sale had taken place inside that State. (2) Notwithstanding anything contained in sub-section (1) or sub-section (1A), where a sale of any goods in the course of inter-State trade or commerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale during such movement effected by a transfer of documents of title to such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of inter-State trade or commerce unless the dealer selling such goods furnishes to the prescribed authority a certificate in the prescribed manner on the prescribed form duly filled and signed by the official, personnel, consular or diplomatic agent, as the case may be. (8) Rates of tax on sales in the course of inter-State trade or commerce. (1) Every dealer, who in the course of inter-State trade or commerce, sells to a registered dealer goods of the description referred to in sub-section (3), shall be liable to pay tax under this Act, which shall be [two per cent] of his turnover or at the rate applicable to the sale or purchase of such goods inside the appropriate State under the sales tax law of that State, whichever is lower: Provided that the Central Government may, by notification in the Official Gazette, reduce the rate of tax under this sub-section. (2) The tax payable by any dealer on his turnover in so far as the turnover or any part thereof relates to the sale of goods in the course of inter-State trade or commerce not falling within subsection (1), shall be at the rate applicable to the sale or purchase of such goods inside the appropriate S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, [refunds, rebates, penalties,] [charging or payment of interest,] compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly: Provided that if in any State or part thereof there is no general sales tax law in force, the Central Government may, be rules made in this behalf make necessary provision for all or any of the matter specified in this sub-section. (3) The proceeds in any financial year of any tax, [including any interest or penalty] levied and collected under this Act in any State (other than a Union Territory) on behalf of the Government of India shall be assigned to the State and shall be retained by it; and the proceeds attributable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealer in excess of the amount due from him under this Act, either by cash payment or by deduction or adjustment of such excess from the amount of tax, penalty or interest due in respect of other period. (2) Nothing in sub-section (1) shall be deemed to empower the Commissioner to amend, vary or rescind any assessment, or to amend, vary or rescind any order passed on appeal, revision or review under section 79, section 80, section 81, section 82 or section 83, or to confer on a dealer any relief in addition to what he is entitled under the provisions of this Act. (61) Reimbursement of tax levied under the Act in respect of . Or inter-State sales of declared goods.--- (1) Where a tax has been levied under this Act in respect of the sale or purchase of any goods referred to in section 14 of the Central Sales Tax Act, 1956, and such goods are subsequently sold in the course of inter-State trade or commerce, and tax has been paid under that Act in respect of sale of such goods in the course of inter-State trade or commerce, the tax levied or paid under this Act shall be reimbursed to the dealer making such sale in the course of inter-State trade or commerce in the manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 1956 (12). (1) The declaration and the certificate referred to in sub-section (4) of section 8 shall be in Forms C and D respectively: . (7) The declaration in Form C or Form F or the certificate in Form E-I or Form E-II shall be furnished to the prescribed authority within three months after the end of the period to which the declaration or the certificate relates: Provided that if the prescribed authority is satisfied that the person concerned was prevented by sufficient cause from furnishing such declaration or certificate within the aforesaid time, that authority may allow such declaration or certificate to be furnished within such further time as that authority may permit. Now I would like to make little discussion on the ambit and scope of the aforesaid relevant provisions of law: Under Section 6 of CST Act the liability, in the case of an inter-State sale, liability to pay tax is that of the seller (i.e. IOCL herein). This tax is imposed by the Central Government. However, in view of Section 9(2) of the CST Act the authorities of the selling State (i.e. State Government of West Bengal) have been delegated the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the returns it can be made during the course of assessment or even at the appellate stage by producing C Forms which has been done in the instant by producing C Forms during the course of and before passing the final assessment order. Purchasers on inter-State sale have an independent right under Section 37(3) of the West Bengal Sales Tax Act, 1994 [hereinafter referred to as the WBST Act ] to apply for a refund being a buyer of goods as the refund of excess tax has been collected from it and deposited with the State Government of West Bengal. Thus, the statute itself provides for an independent right to the buyer (i.e. Petitioners in the present case) of goods to apply for a refund, which in the instant case was done by moving an application dated 29.12.2020. Under Article 265 of the Constitution of India, no tax can be collected without any authority of law and any excess tax collected by State is liable to be refunded and the State is bound to act reasonably having regard to the equality clause under Article 14 of the Constitution of India. Petitioners in support of their contention have relied on several decisions and quoting some of which I feel necessary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ranchi is stayed on a condition that concerned department will issue necessary C Form to these petitioners which these petitioners can use for the purposes of effecting the inter-state purchase of goods which are defined in Section 2 (d) of the Central Sales Tax Act, 1956 and the petitioners shall produce these C Forms before the selling dealers outside the State of Jharkhand and provide the said dealers with further undertaking that in the event of these petitioners become unsuccessful in these writ petitions and their challenge to the circular issued by the Principle Secretary-cum-Commissioner, Commercial Taxes Department, Jharkhand, Ranchi dated 11.10.2017 fails, these petitioners shall deposit forthwith, the balance of tax benefit which these petitioners otherwise have derived by use of such C Forms. (7) The State of Jharkhand is hereby directed to issue necessary C Forms, without prejudice to their rights and contentions and such C Forms may be utilized by these petitioners with the undertaking as noted hereinabove and all such actions shall be subject to the outcome of these writ petitions. Unreported decision dated 28.08.2019 passed by the Hon ble Jha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to show-cause, and in accordance with law, but there cannot be a blanket denial of the benefit of Form-C, as has been done by virtue of circular dated 11.10.2017. (29). With these observations and directions, all these writ applications stand allowed. The pending Interlocutory Applications in all the writ applications also stand disposed of. AIR 1967 SC 234 (State of Madras Vs Radio and Electricals Ltd. Anr) - Paragraphs 11, 15 (11) The Scheme of the Rule read with the Act is that the purchasing dealer as well as the selling dealer must register themselves under the Central Sales Tax Act. If declared goods are specified in the certificate of registration of the purchasing dealer and if it be certified that the goods are intended for resale by him, the sale is subject to concessional rate of tax under Section 8(1). In respect of sales of other classes of goods specified in the certificate of registration of the purchasing dealer, if the goods are purchased either for resale by him, or for use in manufacture of goods for sale, or for use in the execution of contracts, the concessional rate of tax is available, provided the selling dealer obtains from the purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tify the defects, if any. That was turned down. It is to be noted that under Rule 12(7) of the Central Sales Tax (Registration and Turnover) Rules, 1957 (in short the `Registration Rules') the declaration form can be filed at a subsequent point of time and not necessarily along with returns. On an application being made before the Assessing Officer the exemption can be granted. The object of the Rule is to ensure that the assessee is not denied a benefit which is available to it under law on a technical plea. The Assessing Officer is empowered to grant time. That means that the provisions requiring filing of declaration forms along with the return is a directory provision and not a mandatory provision. In a given case even the declaration forms can be filed before the appellate authority as an appeal is continuation of the assessment proceedings. In a given case, if the appellate authority is satisfied that assessee was prevented by reasonable and sufficient cause which disenabled him to file the forms in time, it can be accepted. It can also be accepted as additional evidence in support of the claim for deduction. In the instant case, respondent No.1 company made a specific re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been satisfied and therefore we affirm the direction of the Additional Judge (Revisions), Sales Tax for refund of the amount to the dealer and affirm the High Court's judgment on this basis. (1978) 4 SCC 271 (Hindustan Sugar Mills Vs State of Rajasthan Ors.) - Paragraph 18 (18) . We think that, in the circumstances, fairness and justice demand that the Central Government should pay to the assessee the amount of sales tax on the freight component of the price in respect of transactions of sale of cement entered into by the assessee with them under the provisions of the Control order. It is true and we are aware that there is no legal liability on the Central Government to do so, but it must be remembered that we are living in a democratic society governed by the rule of 'law and every Government which claims to be inspired by ethical and moral values must do what is fair and just to the citizen, regardless of legal technicalities. We hope and trust that the Central Government will not seek to defect the legitimate claim of the assessee for reimbursement of sales tax on the amount of freight by adopting a legislatic attitude but will do what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be refunded under section 240 of the Act, may take all such facts into consideration and calculate the amount to be refunded. So viewed, an assessee will not be placed in a more disadvantages position than what he would have been, had an assessment been made in accordance with law. (1996) 5 SCC 373 (IDL Chemicals Ltd. Vs Union of India) - Paragraph 13 (13) There is, in our view, no doubt that the reclassification of ammonium nitrate by the order of the Central Board dated November, 1980, fasts upon the appellants the obligation to pay the excise duty that is leviable as a result. Such obligation does not arise merely by reason of an agreement between SAIL and the appellants but also by virtue of the provisions of Chapter X of the Central Excise Rules, 1944 the appellants suffer adverse civil consequences and have therefore, the locus to challenge the reclassification. There is no form other than the High Court under Article 226 where they can do so, and the High Court was in error in not entertaining the later writ petition (No. 183/1981) and referring the appellants to a civil suit. Insofar as the earlier writ petition (NO. 86/1980) is concerned, the High Court ought, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate in Form 'E-I' or Form 'E-II' shall be furnished to the prescribed authority up to the time of assessment by the first assessing authority: Provided that if the prescribed authority is satisfied that the person concerned was prevented by sufficient cause from furnishing such declaration or certificate within the aforesaid time, that authority may allow such declaration or certificate to be furnished within such further time as that authority may permit. [It may be noted that proviso to sub-rule (7) was added in the year 1972 with effect from 1-4-1972, i.e., the date on and from which the proviso to sub-section (4) of Section 8 was added by the Amendment Act 61 of 1972.] Sub-rule (7), it is evident, deals with Form-C and certain other forms. It does not deal with Form-D. The main limb of sub-rule says that the declaration in Form-C shall be furnished to the prescribed authority (which means the assessing authority) up to the time of assessment by the first assessing authority. (5). At this stage, we may consider the reasons for which the proviso to subsection (4) was added by the Amending Act 61 of 1972 and the proviso to sub-rule (7) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the time of assessment by the first assessing authority or for that matter the proviso to the said sub-rule it excludes, by necessary implication, the appellate authorities. The decision in MacMillan furnishes a complete answer to this contention. We may elaborate. Section 13 of the Indian Income Tax Act, 1922 (corresponding to Section 145 of the present Act) read as follows: 13. Income, profits and gains shall be computed, for the purposes of Sections 10 and 12, in accordance with the method of accounting regularly employed by the assessee 7 (1958) 33 ITR 182: AIR 1958 SC 207: 1958 SCR (Jeevan Reddy, J.) Provided that, if no method of accounting has been regularly employed, or if the method employed is such that, in the opinion of the Income Tax Of ficer, the income, profits and gains cannot properly be deduced therefrom, then the computation shall be made upon such basis and in such manner as the Income Tax Officer may determine. (2009) 1 SCC 540 - paragraphs 10 and 18-26 (Corporation Bank vs- Saraswati Abharansala Anr.) (10) An intra court appeal was filed by the first respondent and a Division Bench of the High Court by reason of the impugned judgment da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the rate of tax as also its recovery must be carried out strictly in accordance with law. (20) If the substantive provision of a statute provides for refund, the State ordinarily by a subordinate legislation could not have laid down that the tax paid even by mistake would not be refunded. If a tax has been paid in excess of the tax specified, save and except the cases involving the principle of `unjust enrichment', excess tax realized must be refunded. The State, furthermore is bound to act reasonably having regard to the equality clause contained in Article 14 of the Constitution of India. (21) It is not even a case where the doctrine of unjust enrichment has any application as it is not the case of the respondent//State that the buyer has passed on the excess amount of tax collected by it to the purchasers. (22) In view of the admitted fact that tax had been collected and paid for the period 6th April, 1999 and 10th December, 1999 @ 1 % of the price which having been reduced from 1st April, 1999 to 0.5 %, the State, in our opinion, is bound to refund the excess amount deposited with it. (23) Furthermore the Notification having been given a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler in the instant case is the IOC and the tax has been levied upon it. Ordinarily it is the dealer alone who can question the validity or quantum of tax. The petitioner is not the dealer even though it is liable to pay tax to the IOC under the agreement. The contention of Mr. Basu, the learned counsel for the petitioner, is that even though the company is not a dealer, as defined in the U.P. Sales Tax Act, yet it is the aggrieved person because the tax has ultimately to be borne by it. It is, therefore, entitled to maintain this petition. It is further urged that because the petitioner is not a dealer it cannot avail of the statutory remedies of appeal, etc., provided under the U.P. Sales Tax Act nor can it file a suit to challenge the assessment order by virtue of the prohibition contained in Section 17 of the U.P. Sales Tax Act and the only course available to the petitioner is to approach this court under Article 226 of the Constitution. In our opinion, there is a good deal of force in this contention. In Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal A.I.R. 1962 S.C. 1044, the Supreme Court while dealing with the scope of Article 226 of the Constitution has made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ab, as he then was, which deals directly with the point arising before us. It was held in that case that relief under Article 226 of the Constitution can be sought not only by a dealer as defined in the Sales Tax Act, who is liable to pay the tax, but also by a purchaser or a consumer from whom the tax is charged by the dealer (see Dr. Diwan Chand Aggarwal v. Commissioner of Sales Tax, Delhi [1963] 14 S.T.C. 51. The preliminary objection is accordingly overruled and it is held that the petitioner-company is entitled to maintain the present writ petition. (2011)1 SCC 484 (M. Sudakar Vs V. Manoharan Ors.) - Paragraphs 14,15 (14) The power to mould relief is always available to the Court possessed with the power to issue high prerogative writs. In order to do complete justice it can mould the relief, depending upon the facts and circumstances of the case. In the facts of a given case a writ petitioner may not be entitled to the specific relief claimed by him but this itself will not preclude the Writ Court to grant such other relief which he is otherwise entitled. Further delay and latches does not bar the jurisdiction of the Court. It is a matter of discretion and not of ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed it, is bound to make the party good, just as an individual would be under like circumstances. The obligation to refund money received and retained without right implies and carries with it the right to interest. Whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. Learned Government Pleader appearing for the Respondent/State of West Bengal has not cited any decision and he has simply tried to distinguish the aforesaid decisions relied upon by the petitioners by submitting that those are not applicable to the case of the petitioners herein. Whole case after perusing the Writ Petitions, affidavits filed by the parties, stand taken by IOCL and upon considering the facts as appear from record, relevant provisions of law and the judgments cited in course of hearing can be summarized as hereinbelow: It is the admitted position as appears from record that the purchasing HSD oil dealer /petitioners as well as IOCL/the selling dealer in West Bengal have registered themselves under the Central Sales Tax Act and the declared goods are certified in the certificate of registration of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excess of concessional rate was not deposited with the Respondent/State of West Bengal. In the present case it has not been disputed by the Respondent State Government of West Bengal that the Petitioners are duly registered under the CST Act and HSD Oil is a product mentioned in the Certificate of Registration of the Petitioners and that C Forms have duly been produced during the course of assessment of the seller (i.e. IOCL herein). The Petitioners claim of being entitled to purchase at a concessional rate on production of C Forms relating to goods in question is therefore undisputed. The State of West Bengal in its Affidavit-in-Opposition has not disputed the fact that the Petitioners were otherwise entitled to purchase HSD Oil at concessional rate but have only relied upon alleged technicalities as stated above for denying the claim of refund to the Petitioners that the petitioners cannot claim refund of excess tax in question directly from it. Petitioners may not be considered a dealer under the WBST Act or WBVAT Act and may not be entitled to file an appeal under the aforesaid Acts, it would nevertheless be entitled to challenge the impugned order of assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned in the invoices. Pleading in this regard is in paragraphs 20-22 of the Writ Petition. Fourth, perusal of the Provisional Credit Note as appears at Page-90 of the Writ Petition would make it clear that the refund would be processed by IOCL only if it received the excess differential tax from the State Government of West Bengal and not otherwise. Since, in the present case the State Government of West Bengal has till date not processed the refund, the Provisional Credit Notes have not been given effect to by IOCL. Fifth, the logical effect of the judgments of the Punjab and Haryana High Court, Rajasthan High Court and Jharkhand High Court as referred above which were affirmed by the Hon ble Supreme Court is that the Impugned Circulars, which denied the concessional rate of tax to the assessees have been set aside which necessarily would mean that the purchasers/Petitioners would become entitled to purchase HSD Oil at a concessional rate of tax from 01.07.2017 onwards. If the State Government of West Bengal is successful in refusing to refund the tax deposited by IOCL, which was recovered from the Petitioners, it would effectively amount to denying the concessional rate of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in paragraph 23 a prayer was made by the Petitioners that refund ought to be granted to Tata Steel Limited . The submission made in the subsequent paragraph was therefore, to directly refund to the Petitioners the amount of excess tax collected by them/the Respondent/State of West Bengal through IOCL. The Learned Government Pleader for the Respondent/State of West Bengal is therefore wrongly interpreting and taking a hyper technical stand that the prayer for refund was made by the Petitioners through IOCL. The representation, if correctly read, makes a prayer to refund to the Petitioners directly, the excess tax collected by the petitioners through IOCL. The Respondent/State of West Bengal is expecting IOCL to do the impossible. Returns were being furnished by IOCL on a quarterly basis. As per Section 30(6) of the West Bengal Sales Tax Act returns had to be revised before the expiry of 30 days from the end of each quarter. At the time when IOCL had filed its returns, the Impugned Circular issued by the State Government of Jharkhand dated 11.10.2017 was still in operation, which prevented the issue of C Forms. IOCL therefore could not have made a claim or a revised claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been given in favour of the Petitioners to apply for and obtain refund of the excess tax deposited by it. The judgment of Hon ble Jharkhand High Court (supra) dated 28.08.2019 (as reported in 2019 SCC Online Jharkhand 1255) has attained finality as Special Leave Petition filed by the State Government of Jharkhand against the same has been dismissed by the Hon ble Supreme Court. The Hon ble Supreme Court in the case of The Commissioner of Commercial Taxes Anr. v. The Ramco Cements Ltd., in Special Leave Petition (Civil) Nos. 15785-15788 of 2020, by order dated 24.03.2021 has specifically approved the aforesaid decision of Hon ble Jharkhand High Court and the Respondent State Government of West Bengal though it was not a party in the said proceeding it could have challenged the same before the Hon ble Supreme Court if so aggrieved since there was no bar, but it did not do so. Central Sales Tax is a tax leviable at the instance of Government of India, even though assessed and collected by the State Government. The Union of India has also accepted the aforesaid position in law, as has been delineated by the Hon ble Punjab Haryana High Court in the case of Carpo Power (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IOCL and the Petitioners cannot direct IOCL to revise/amend its returns. As a buyer/purchaser Petitioners duty ends with the furnishing of C Forms. Once the C Forms had been furnished by the Petitioners and had been produced at the time of assessment by IOCL, the purchaser/buyer (i.e. Petitioners in the present case) is absolved of its obligation in law and is entitled to purchase HSD Oil at a concessional rate of tax. In similar circumstances in the case of Corporation Bank (supra) it was noticed by the Hon ble Supreme Court in paragraph 10 of its judgment that even though the seller had not revised its returns showing its real tax liability, it will appear that the Hon ble Supreme in paragraphs 18-26 of its judgment has directed the State Government concerned to refund directly in favour of the buyer/purchaser, notwithstanding the failure by the seller to revise its returns. On a parity of reasoning even assuming the that there was a failure by IOCL to fulfil its legal obligations of revising its returns, the Petitioners should not be made to suffer on that account and would nevertheless be entitled to a concessional rate of tax. In the case of District Magistrate, Haridw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as held by the Hon ble Supreme Court in Corporation Bank (supra) and in State of Punjab Ors. v. Atul Fasteners Ltd., reported in (2007) 4 SCC 471 at paragraph 5 a seller of goods is an agent of the State Government while collecting taxes on its behalf. Therefore, even assuming, that IOCL was in default in revising its returns, even in such an eventuality, the Petitioners being buyers of goods, have fulfilled their obligations by producing the C Forms and in such circumstances Petitioners could not be made liable for any alleged default of the seller IOCL being tax collecting agent of the Respondent State Government of West Bengal as the buyers i.e. Petitioners in the present case have no control over the activities of the seller i.e. IOCL in the present case. It is a well settled position of law that a writ petition would be maintainable at the instance of a party who has suffered the liability to tax. Thus, in view of the judgment passed by the Hon ble Supreme Court in I.D.L. Chemicals Ltd. v. Union of India Ors., reported in (1996) 5 SCC 373 at Paragraph 13, unreported judgment dated 03.01.2019 passed by the Hon ble Jharkhand High Court at Ranchi in W.P. (C) No. 3318 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave deprived the petitioners of their legitimate right to purchase the HSD oil at statutory concessional rate of tax under Central Sales Tax Act, 1956 in course of inter-State sale during the relevant period and to get refund of tax which was collected by the Respondent Government of West Bengal from the petitioners through IOCL/selling dealer in course of such inter-State Sale in excess of concessional rate of tax under Section 8 (1) read with 8 (3) and 8 (4) of the Central Sales Tax Act, 1956, since it is the petitioners who actually suffered and borne excess higher rate of tax. (2) On a plain reading of Rule 12 (7) of the Central Sales Tax Rules, 1956, and considering various decisions of High Courts and the Hon ble Supreme Court referred above in my considered opinion filing of C Forms along with return by the selling dealer is directory and not mandatory and under the provisions of the Central Sales Tax Act, 1956 and Central Sales Tax Rules, 1956 nowhere there is any specific or complete statutory bar in filing C Forms by the dealers and the same may be filed belatedly at the stage of assessment proceeding and the action of the assessing officer in refusing to accept th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinary compelling circumstances which are matters of record that the time to file the relevant C Forms along with return or revise return under the statute had already expired when the C Forms were issued by the purchasing respective State Governments in favour of the petitioners pursuant to the order of the Hon ble Jharkhand High Court and further petitioners had no control over the unjustified and wrongful action of State Government of Jharkhand in not issuing the relevant C Forms within due time and or on filing of revised return by IOCL/the seller oil dealer. (6) In the facts and in the circumstances of the case Respondent State Government of West Bengal is legally not justified in penalising the petitioners by way of non-refunding of the excess tax collected by it by ignoring and disregarding that the full rate of tax instead of concessional rate of tax were paid by the petitioners to it due to compelling extra ordinary circumstances of wrongful action of non-issuance of C Forms by the purchasing State Government during the relevant period was on the basis of relevant notification and the relevant C Forms were issued in favour of the petitioners by the purchasin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n course of Inter-State sale on statutory concessional rate of tax during the relevant disputed period and act of refusal to refund the excess amount of tax in question collected by it in excess of concessional rate of tax is without statutory sanction and is contrary to in disregard to instruction dated 1.3.2018 issued by the Government of India, Ministry of Finance, Department of Revenue, State Taxes Section and such action of not giving the petitioner benefit of concessional rate of tax and non refund of excess tax collected by the Respondent State Government of West Bengal is arbitrary, unreasonable, unjust and unfair. (10) In view of Article 265 of the Constitution of India it is not proper on the part of the Respondent State Government of West Bengal to levy or collect the tax not authorised by law and collection of tax must be strictly in accordance with law and admitted excess tax in question collected by it in course of Inter-State sale of HSD oil during the relevant period must be refunded by it to the petitioners by acting reasonably which it is bound to being a State. (11) In the instant cases neither petitioners nor IOCL is guilty of any latches and when there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding by the HSD oil purchasing dealers/petitioners through the oil selling dealers/IOCL relating to the relevant disputed period which were issued by the purchasing respective State Government, in favour of the petitioners on inter-State sales in question and it shall accept the aforesaid relevant C Forms and allow concessional rate of tax to the petitioners on the basis of the said relevant C Forms subject to formal verification of the same. (ii) The respondent State Government of West Bengal shall within three months from date process and refund the excess amount of tax collected by it from the petitioners oil purchasing dealers in excess of concessional rate of tax through selling dealers/IOCL in West Bengal in course of Inter-State sales in question during the relevant period with interest at the rate of 10% per annum on the basis of relevant C Forms submitted by the seller/IOCL during the impugned assessment proceedings, directly to the petitioners instead of refunding the same to the Respondent IOCL after formal verification of the same along with relevant documents and by affording opportunities of hearing to the petitioners and IOCL in course of the said ver ..... X X X X Extracts X X X X X X X X Extracts X X X X
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