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2022 (9) TMI 425 - HC - VAT and Sales TaxRefund of amount paid as pre-deposit with the appeals (along with interest) - Approval of resolution plan under IBC - ex parte assessment orders - Section 82 (3) of the Rajasthan Value Added Tax Act, 2003 - HELD THAT:- Pre-deposit of a percentage of the assessed amounts was paid with the appeals by way of mandatory statutory obligation as per Section 82 (3) of the Act of 2003 - Section 82(3) of the Act of 2003 imposes a mandatory statutory obligation of making a pre-deposit for entertaining an appeal. In appeals against ex parte assessment orders, the mandatory statutory pre-deposit would be 5% of the Value Added Tax and 10% of the Value Added Tax amount in other cases. On going through the provisions of the Act of 2003 and the Rules of 2006, it becomes clear that mandatory statutory obligation pre-deposit with the appeal comprises of a proportion of VAT liability imposed upon the assessee by the assessing authority. It is not in dispute that the respondent Department had submitted a claim for an outstanding amount of Rs. 479,73,13,819/- before the NCLAT in the resolution proceedings in the capacity of an operational creditor. The amount so claimed would relate to Value Added Tax and nothing else. The NCLAT disposed of the demands raised by all corporate/operational creditors including the respondent Department while accepting its claim only for a sum of Rs. 61.05 crores - the liability of the petitioner towards the respondent Department was fixed at Rs. 61.05 crores. Any demand made or amount retained by the Department beyond the said sum of Rs. 61.05 crores either from the sick unit or from the petitioner would, thus, be invalid as being contrary to the Resolution Plan approved by the NCLAT. Once the tax liability raised by the Department had been fixed by effect of acceptance of Resolution Plan, manifestly, the Department could not hold on to any payment made by the assessee in excess of what has been approved under the Resolution Plan, i.e. Rs. 61.05 crores - The Resolution Plan having been approved and the claim of the Department having been finally decided by the NCLAT, if at all the Department was desirous of claiming that the pre-deposit amounts were exclusive and beyond the claim filed by the Department before the NCLAT, then the burden would be on the Department to prove the same. The assessee discharged the burden put upon it by Section 53 (5) of the Act of 2003 by virtue of the Resolution Plan finalized by the NCLAT. Thus, the finding recorded by the Tax Board that the amount of pre-deposits were distinct and were not covered under the claim filed by the Department before the NCLAT has no foundation whatsoever. As the original assessee, i.e. M/s. Binani Cement Ltd., was compelled to file the appeals with pre-deposits of a percentage of the tax liability by way of mandatory statutory obligation as per the assessment orders issued by the Commercial Taxes Department, the consequential relief pursuant to extinguishment of the demands under the assessment order would definitely require a direction for refund of the amount to the successful Resolution Applicant, i.e. the petitioner herein, who took over the assets and liabilities of the sick unit according to the Resolution Plan approved by the NCLAT. The consolidated impugned order dated 28.12.2020 passed by the Rajasthan Tax Board, Ajmer in the appeals filed by the petitioner is set aside to the extent the applications filed by the petitioner for refund of pre-deposit amounts with interest were rejected - revision allowed.
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