9911796707
TMI Blog2008 (11) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... rivate limited company incorporated under the Companies Act, 1956 having its registered office at 240, 2nd Floor, 254-A Park Street, Kolkata 16. It is a works contractor and obtained registration certificate under the OST Act from opposite party No. 1. For the year 1996-97, the petitioner was assessed under section 12(4) of the OST Act by opposite party No. 1 who completed the assessment order under section 12(4) of the OST Act granting a refund of Rs. 91,512. Being aggrieved by the said order, the petitioner preferred first appeal for further relief before opposite party No. 2 who by his order dated July 20, 2002 (annexure 4) dismissed the appeal confirming the order of assessment. Pursuant to the said order under annexure 4 passed by opposite party No. 2, the petitioner filed an application for refund of Rs. 91,512. However, being dissatisfied with the order of the first appellate authority, both the petitioner and the Revenue filed second appeal before the Orissa Sales Tax Tribunal, Cuttack. The learned Tribunal vide its order dated April 20, 2005 (annexure 6) while allowing the appeal of the petitioner in part dismissed the appeal preferred by the Revenue. The learned Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1997 in view of the order of assessment passed by opposite party No. 1. Concluding his argument Mr. Pati submits that opposite party No. 1 is obliged to refund a sum of Rs. 98,262 along with interest at 24 per cent per annum from the date of first application till it is refunded; and by the time the writ petition was filed, the interest accrued on the refund amount was at Rs. 1,20,795. Mr. Dalei, learned counsel appearing on behalf of the Revenue, submits that opposite party No. 1 is justified in rejecting the petitioner's first refund application dated October 1, 2002 filed pursuant to the order of opposite party No. 2 in view of the fact that the petitioner being not satisfied with the first appellate order had preferred second appeal. The Revenue was also not satisfied with the first appellate order and filed second appeal. In the process, the assessment order merged with the first appellate order and both the assessment order and the first appellate order merged with the second appellate order. The petitioner therefore is not entitled to get any refund on the basis of the first refund application dated October 1, 2002 filed by him pursuant to the first appellate order and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the rate of ten per cent per annum with effect from the date of expiry of the said period: Provided that- (a) If the delay or any part thereof in granting the refund within the aforesaid period attributable to the person to whom the refund is payable, the period of such delay shall be excluded for the purpose of calculation of such interest; and (b) the interest calculable shall be on the balance of the amount after adjusting the amount of tax, penalty or other amount due, if any, under this Act from the dealer for any year out of the refundable amount of the date from which such interest is calculable. . . . Section 14D. Power to withhold refund in certain cases.-Where an order giving rise to a refund is the subject-matter of an appeal or further proceeding under this Act, the Commissioner may, if he is of the opinion that the grant of refund is likely to adversely affect the revenue, withhold the refund till such time as he deems proper. Rule 39. Application for refund.-(1) An application from a dealer for a refund of any amount of tax, penalty or interest, if any, paid by him in excess of the amount and interest due or security paid shall be made to the Commissioner in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first appellate order dated July 20, 2002 (annexure 4). The petitioner made an application for refund on October 1, 2002 in form No. XII as prescribed under rule 39 of the OST Rules. This refund application was filed within the period of limitation as prescribed under section 14 of the OST Act. Opposite party No. 1 instead of granting refund pursuant to his own order that was confirmed by the first appellate authority kept the matter pending for about five years and finally rejected the same on September 13, 2007 (annexure 1). The said order does not reveal any reason whatsoever why the said application for refund was not acted upon within a reasonable time and why the same was kept pending for about five years till it was rejected on September 13, 2007. Opposite party No. 1 was obliged under section 14 of the OST Act to consider the petitioner's refund application promptly and should have refunded the said amount within a period of ninety days from the date of application, otherwise, the dealer claiming refund shall be entitled to get interest on the refund amount. It shall be an unnecessary financial burden on the State exchequer, which should always be avoided. This c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny authority of law. Such action is always to be deprecated. The petitioner is entitled to get refund of Rs. 91,512 from October 1, 2002 along with interest as provided under section 14C of the OST Act during relevant time till the date of payment. The second question is whether the order dated September 13, 2007 (annexure 1) passed by opposite party No. 1 rejecting the refund application of the petitioner dated October 1, 2002 (annexure 5) is sustainable in the eyes of law. As stated above, opposite party No. 1 for no reason kept the petitioner's refund application dated October 1, 2002 pending for about five years whimsically. Rule 39 empowers the assessing officer to pass appropriate order as he thinks fit on a refund application. If the refund application is found to be incorrect, incomplete or otherwise not in order, the assessing officer can pass any appropriate order only after making such enquiry, as he considers necessary, and after giving the dealer an opportunity of being heard. But in the present case, neither any enquiry was made nor was any opportunity of hearing afforded to the petitioner before rejection of the refund application. This clearly violates the mand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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