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2013 (10) TMI 1282 - HC - VAT and Sales TaxRefund claim - part deposit of penalty in compliance with Section 14(B)(7) of the Punjab General Sales Tax Act 1948 - Held that - A perusal of the order reveals that order imposing penalty was held to be non-speaking and ex parte and was therefore remanded to the Assistant Excise and Taxation Commissioner Mobile Wing Jalandhar to pass a fresh order after granting an opportunity to the petitioner to adduce material evidence in support of his plea that he is not liable for any penalty. The absence of words that the impugned order has been set aside or that the appeal is allowed would not raise an inference that the original order subsists. A perusal of the aforesaid extract leaves no ambiguity that order levying penalty was set aside and the matter remanded to the Assistant Excise and Taxation Commissioner Mobile Wing Jalandhar to pass a fresh order. The petitioner admittedly deposited Rs. 88, 000/- at the time of filing appeal. The appeal having been allowed and order of penalty having been set aside the petitioner is entitled to refund of Rs. 88, 000/-. The mere pendency of the remand case does not entitle the respondents to retain the amount deposited by the petitioner. - Decided in favour of assessee.
Issues involved:
1. Refund of penalty amount deposited by the petitioner under Section 14(B)(7) of the Punjab General Sales Tax Act, 1948. 2. Interpretation of the order passed in appeal regarding the penalty imposition. 3. Entitlement of the petitioner to the refund of the deposited amount after the appeal was allowed. Detailed Analysis: 1. The petitioner sought a writ of mandamus for the refund of Rs. 88,000 deposited as part of the penalty under Section 14(B)(7) of the Act. The petitioner had initially deposited this amount while filing an appeal against a penalty of Rs. 3,52,000 imposed by the Assistant Excise and Taxation Commissioner. The appeal was allowed by the Deputy Excise and Taxation Commissioner, who remanded the matter for fresh examination. Despite the passage of seven years with no further proceedings initiated or orders passed, the petitioner requested a refund of the deposited amount. 2. The respondents argued that the order in appeal did not set aside the penalty imposition but directed the petitioner to provide relevant material to the Assistant Excise and Taxation Commissioner. While the petitioner did not comply with this direction, the department also failed to issue any notice to the petitioner as per the appeal order. The Court examined the order dated 02.11.2006, which indicated that the penalty imposition was ex parte and non-speaking, leading to a remand for a fresh order after allowing the petitioner to present material evidence. The absence of specific language setting aside the penalty did not negate the fact that the original order was remanded for reconsideration. 3. Upon analyzing the order, the Court determined that the penalty order was indeed set aside, and the matter was remanded for a fresh decision by the Assistant Excise and Taxation Commissioner. As the appeal was allowed, and the penalty order was effectively annulled, the petitioner was deemed entitled to the refund of the deposited amount of Rs. 88,000. The Court held that the pendency of the remand case did not justify the respondents withholding the deposited sum. Consequently, the Court allowed the writ petition, directing the respondents to refund the Rs. 88,000 to the petitioner and advised the petitioner to raise any interest-related claims during the remand proceedings, which were to be concluded within six months.
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