TMI Blog2012 (11) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... est at one per cent per month from the date after expiry of 60 days after passing of the assessment order, i.e., April 8, 2012 till payment. The said amount be paid to the petitioner within a period of one month from the date of receipt of certified copy of the order. - CWP Nos. 18723, 20823 of 2012 - - - Dated:- 20-11-2012 - AJAY KUMAR MITTAL AND SANDHAWALIA G.S., JJ. For the Appellant : Avneesh Jhingan For the Respondents Nitin Kaushal, Additional Advocate-General, Haryana, The judgment of the court was delivered by G.S. SANDHAWALIAJ.- This shall dispose of two petitions, namely, CWP Nos. 20823 and 18723 of 2012, as common questions of facts are involved in both the cases. For facts, CWP No. 20823 of 2012 is being referred to. The present petition has been filed under article 226 of the Constitution of India praying for issuance of a writ in the nature of certiorari quashing order dated September 27, 2012 (annexure P5) whereby, approval for withholding refund of ₹ 21,88,947 was ordered by the Excise and Taxation Commissioner, Haryana-respondent No. 4 (hereinafter referred to as the Commissioner ) and for a direction to refund the said amount along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n drastic reduction of amount of refund and, therefore, a request was made to respondent No. 4 for ordering withholding of refund in terms of section 21(2) of the Act. It was further submitted that the order by respondent No. 4 had been made after examining the satisfaction of respondents Nos. 2 and 3 as regards the adverse effect on recovery of tax dues. It was further pleaded that the petitioner had approached this court without exhausting the statutory remedies of the first and second appeals provided under the Act. Reliance was placed upon the judgment of the honourable apex court in Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315 (SC); [1983] 142 ITR 663 (SC). The judgment in CWP No. 19172 of 2006 (Ratti Woolen Mills v. State of Punjab [2007] 9 VST 105 (P H) was sought to be distinguished on the ground that it was under the Punjab Act. It was further submitted that there is an under-assessment amounting to ₹ 51,75,871 as per the audit objections and, therefore, the surety bond of ₹ 23 lacs could not be considered adequate. The additional revenue of ₹ 28,75,872 would be added if the audit objections are found to be correct. Section 21of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders were passed that the refund be withheld. In pursuance of the said proceedings, a revision notice was also issued on August 28, 2012 under section 34 of the Act and the petitioner filed an application on September 18, 2012 for payment of the refund. Thereafter, the withholding order was passed on September 27, 2012 which reads as under: Whereas refund amounting to ₹ 21,88,947 (rupees twenty one lac eighty eight thousand nine hundred and forty seven only) for the year 2008-09 under the Haryana Value Added Tax Act, 2003 is due to M/s. Country Builder Pvt. Ltd., Faridabad holding TIN 06461217440. And whereas order giving rise to refund is subject-matter of further proceedings. And whereas it has been certified that recovery of the amount ultimately found due will be adversely affected later on, if the refund is allowed. Now, therefore, I Anurag Rastogi, IAS, Excise and Taxation Commissioner, Haryana, Panchkula, in exercise of the powers conferred under section 21 of the Haryana Value Added Tax Act, 2003 do hereby accord approval for withholding of refund of ₹ 21,88,947 (rupees twenty one lac eighty eight thousand nine hundred and forty seven only) due t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e quashed on this ground itself. Under sub-section (2) of section 21, the Commissioner has three options on reference. He could either pass an order withholding refund, or direct refund on furnishing of security except cash security, or thirdly decline to withhold the refund. Thus, the reasons for passing the order are in-built in sub-section (2) of section 21 of the Act. The Commissioner has thus to give reasons for declining for withholding the refund on the furnishing of the security and could not without any reasons withhold the refund. A perusal of the order reproduced above goes on to show that no reasons have been given in the order dated September 27, 2012. It was noticed that the order giving rise to refund was subject-matter of further proceedings and it had been certified that the recovery of the amount ultimately found due would be adversely affected later on, if the refund is allowed and the refund was directed to be withheld. Section 21 of the Act provides that the taxing authority itself is to record reasons in writing and if the authority is below the rank of the Commissioner, he is to refer the case within 30 days of the application for refund to the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requisite interest thereon. That a perusal of section 20(4) to 20(11) goes on to show that where the excess amount has been paid, refund will be allowed by the Assessing Authority and shall carry interest at one per cent per month. Under section 20(9), the refund after a period of 60 days from the date of making application shall carry simple interest at the rate of one per cent per month. Similarly, sub-section (10) of section 20 provides for refund within 60 days of the passing of the order. Section 20(4) to 20(11) of the Act read as under: 20. (4) Where the assessing authority finds on assessment of a dealer that he has paid any amount in excess of tax, interest or penalty assessed or imposed on him under this Act, it shall allow refund of the excess amount or allow the same to be carried forward for adjustment with future tax liability, as the case may be. (5) Any amount refundable to any person as a result of an order passed by any court, appellate authority or revising authority, shall be refunded to him on an application containing the prescribed particulars accompanied with the prescribed documents made in the prescribed manner to the prescribed authority. (6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se tax, input tax and the amount of tax paid by the dealer for the assessment period. If the assessing authority finds that the sum of tax paid and input tax exceeds the sum of output tax and purchase tax, it shall determine the excess amount and from the excess amount it shall then deduct any amount due from the dealer, whether under the Act or the Central Act and it shall allow from the balance amount refund of the amount determined in accordance with the provisions of sub-rules (1), (2) and (3). If the balance amount falls short of the amount determined under sub-rules (1), (2) and (3), the refund shall be restricted to the balance amount otherwise it shall be allowed in full and the balance left thereafter, if any, shall be carried forward for adjustment with future tax liability. The assessing authority shall, in respect of the amount to be refunded to the dealer, issue to him at his option a refund payment order in form S.T.R. 34 prescribed under the Punjab Subsidiary Treasury Rules or refund adjustment order in form VAT-G9 and where it fails to do so within sixty days of the date of the assessment order allowing the refund, there shall be paid interest to the claimant at the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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