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2015 (3) TMI 556 - BOMBAY HIGH COURTRefund claim - Benefit of provisions governing set off contained in Section 48(6) of the Maharashtra Value Added Tax Act, 2002 - Held that:- The provisions of Section 48 deals with set off, refund etc. Section 49 is on refund of tax on declared goods sold in the course of interstate trade or commerce and, therefore, not relevant here. Section 50 deals with refund of excess payment. Subsection (2) thereof enables dealer to adjust such refund against the amount due as per any return for any period contained in the said year. However, it is not necessary for us to consider 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 assessment for the year 2008-09 has been finalized and demand has been made, assessment for the earlier year i.e. 2007-08 is still pending. There is no obvious reason for keeping it pending. This conduct defeats legislative intent behind incorporating Section 48(6) in statute and denies advantage of a beneficial provision meant for assessee to it. - 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. - Decided in favour of assessee.
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