TMI Blog2022 (4) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... e to a refund was not subject matter of any further proceedings. So far as according of approval to withhold the refund by Commissioner on file is concerned, the same is inconsequential. From analysis of Section 21, one would infer that it confers power on Commissioner to pass an order withholding refund or allowing the refund on furnishing of security on satisfaction of the conditions enumerated under Section 21(2). Legislature was conscious of the fact that the power conferred to withhold refund in Section 21 is akin to exercising power to stay the money decree and thus, an option was given that the refund can be directed to be made on furnishing of security as the objective is to affect the recovery only. It goes without saying that any order passed to withhold the refund is prejudicial to the interest of assessee. Noting on file cannot be a substitute to an order required to be passed under the provisions of Section 21. Further impugned order Annexure P-10 is bereft of any reasoning. It is trite that mere reproduction of the words of statute cannot be construed as substitute for the reasons that an authority exercising statutory power is required to record. The impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of CWP-14413-2016 challenging the revisional order. The said writ petition was disposed of vide order dated 08.03.2017 (Annexure P-6), whereby the petitioner was relegated to the alternative remedy of appeal. In appeal preferred by the petitioner by the Haryana Tax Tribunal, the revisional order was quashed and the assessment order dated 29.12.2014 (Annexure P-1) was maintained. Thus, holding the petitioner entitled to refund of ₹ 2,10,58,992/-. 8. On the basis of the order passed by the Tribunal dated 28.05.2019, petitioner applied for refund vide application dated 08.08.2019 (Annexure P-8). After respondent authority failed to respond, the petitioner again approached this Court by way of CWP- 4094-2020, seeking writ of mandamus directing the respondents to pay the refund. After notice of motion was issued on the aforesaid writ petition, order dated 15/19.05.2020 was passed which has now been impugned in the present writ petition. While assailing the aforesaid order dated 15/19.05.2020, counsel for the petitioner submits that the order passed under Section 21 of 2003 Act, is illegal as the same does not satisfy the conditions required to be fulfilled for exercising po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax relating to the goods which have been sold in the course of export of goods out of the territory of India or have been used in manufacture and the manufactured goods have been sold in the course of export of goods out of the territory of India, in full; and (b) in respect of input tax relating to the goods which have been sold in the State or in the course of inter-State trade or commerce or have been used in manufacture and the manufactured goods have been sold in the State or in the course of inter-State trade or commerce, only to the extent of such input tax exceeding the tax including the central sales tax calculated on sale of goods on account of difference in rate of tax between the input tax and the tax calculated on sales, and the balance input tax after reducing therefrom the tax including the central sale tax levied on the sale or purchase of goods, as the case may be, shall be carried over for adjustment with future tax liability. (3) A VAT dealer may seek refund by making an application containing the prescribed particulars accompanied with the prescribed documents in the prescribed manner to the assessing authority who shall, after examination of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question has been due to the fault of the assessee entitled to the refund, such question shall, after giving the assessee a reasonable opportunity of being heard, be determined by the Commissioner by an order in writing. 21. Power to withhold refund (1) Where an order giving rise to a refund is the subject matter of further proceedings and the taxing authority interested in the success of such proceedings is of the opinion that the grant of the refund is likely to adversely affect the recovery in the event of success of such proceedings, he may, for reasons to be recorded in writing, withhold the refund and shall, if such authority is below the rank of Commissioner, refer the case, within thirty days of the application for the refund, to the Commissioner for order. (2) If a reference has been made to the Commissioner under sub-section (1) in time, he may either pass an order withholding refund or direct that refund be made on furnishing of security except cash security of the like amount or decline to withhold the refund. Provided that if no order withholding the refund is received within ninety days of making the reference to the Commissioner, the refund shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade on furnishing of security, the said power cannot be exercised mechanically. While exercising this power, the authority i.e. Commissioner has to act judicially and is required to give an opportunity to the assessee to make out case for refund or satisfy him by furnishing security. Thus, noting on file cannot be a substitute to an order required to be passed under the provisions of Section 21. Further impugned order Annexure P-10 is bereft of any reasoning. It is trite that mere reproduction of the words of statute cannot be construed as substitute for the reasons that an authority exercising statutory power is required to record. 14. Keeping in view the aforesaid facts, we find that the impugned order dated 15/19.05.2020 (Annexure P-10) passed by respondent No.2 i.e. Excise Taxation Commissioner, Haryana withholding the refund of ₹ 2,10,58,992/- is unsustainable being in teeth of provision of 2003 Act. The authorities are directed to issue refunds to the petitioner in terms of his application dated 08.08.2019 (Annexure P-8) as per law within a period of one month from the date of receipt of certified copy of this order. 15. Petition stands allowed in the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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