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2015 (12) TMI 1196 - HC - VAT and Sales TaxDemand of interest u/s 32 - Refund of excess tax - Delay in sanction of refund claim - Held that:- Petitioner had raised a claim for refund for the year 20082009, in respect of which the return was filed on 30.04.2010, which is not in dispute. Having filed return for the year 200809, he filed an application for refund on 11.06.2010 i.e. after almost 1 ˝ months. - Once the application was filed on 11.06.2010, the provision of Section 51 of the Act before amendment, stood attracted - by amendment to Section 51 by Maharashtra Act No. 15 of 2011 w.e.f. 01.05.2011, words “within one month of the receipt of the application” have been substituted. - present case, was made on 11.06.2010 for refund and the Commissioner, within one month of receipt of the application, could have called for such additional information from the dealer as he may think fit. In the present case, admittedly, additional information was called by the Commissioner after 9 months of the receipt of the application, which could not have been done after the expiry of one month. Order of refund was made on 16.12.2012 i.e. after more than three years, for which there is absolutely no explanation and for which the dealer cannot be held guilty for non payment. - concerned Commissioner was at fault in not adhering to the limitation provided by law. It is because of the late making of the order by the concerned Commissioner, the litigation has arisen and, therefore, it would be appropriate for the Government to find out the concerned officer/ Commissioner who has failed in his legal/statutory duty to act according to the provisions of law and proceed against him in accordance with law. By not making refund within time limit prescribed by law i.e. within three months, the Refund Officer has violated law and, therefore, when the department itself made the direct credit as late as on 28.03.2013, the present officer has treated him as defaulter within the meaning of section 30 (2) forgetting that the Refund Officer had himself violated the law. Thus, the Refund Officer as well the concerned Assistant Commissioner both have put the petitioner to a double whammy. It is preposterous, in our opinion, and a retrograde step. In our opinion, section 30 (2), therefore, will have no application in the present case. The petitioner cannot be blamed for not making payment and it is the concerned officer, who did not pass order within three months and created the entire chaos. Thus we hold that the respondent-concerned Assistant Commissioner, Sales Tax, who has issued demand notice is deemed to be aware of this factual and legal position since the order of refund was communicated to him and the petitioner is not at fault since the refund officer himself did not act according to law. Without thinking so, the Assistant Commissioner, issued the demand notice which, in our opinion, is a reckless act. - Decided in favour of assessee.
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