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2015 (5) TMI 945 - MADRAS HIGH COURT

2015 (5) TMI 945 - MADRAS HIGH COURT - [2015] 85 VST 113 (Mad) - Claim of interest on refund with refund - Refund not granted inspite of order of High Court - Levy of sales tax turnover - shame transactions for obtaining loan from bank - Held that:- From a cursory reading of Rule 34, it is evident that the said rule mandates that the assessing authority shall give effect to the order of the High Court (Special Tribunal) within three months from the date of communication of the order. It is cle .....

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rties in the proceedings, when the miscellaneous petition filed is curative in nature and not used for supplanting substantive law, in exercise of inherent powers, shall entertain such petitions for implementing the orders of the Court.

Power of the Court does not end with the passing of the order, but more so, in seeing that the order is implemented in letter and spirit, howsoever difficult it may be. In case where the orders passed by the Court are not implemented, the Court, in exe .....

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e High Court), any delay in refund of excess tax is liable to attract interest and the department is bound to pay the same. In the present case, inspite of the order being despatched by this Court on 15.4.2014, almost a year having passed, the department has not refunded the amount back to the petitioner. Therefore, invoking Rule 34, the petitioner is entitled to interest on delayed payment beyond the period of three months from the date of communication of the order. Therefore, this Court is of .....

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aneous petition has been filed for a direction on the respondents/department to refund a sum of ₹ 1,50,00,000/- (Rupees One Crore Fifty Lakhs only) to the petitioner along with interest in consequence to the common order dated 21.3.2014 passed by this Court in T.C. (R) No.119/2009. 2. This Court, vide order dated 3.8.10 directed the petitioner to pay a sum of ₹ 1,50,00,000/- (Rupees One Crore Fifty Lakhs only) as condition precedent for grant of stay within a stipulated time frame, w .....

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rt thought fit to call for the records pertaining to the Criminal Court proceedings and the Enforcement Wing Officials records from the Government Pleader, so that the nature of transaction as contended by the assessee could be seen from verification of the same. Sufficient opportunity was given to the Revenue to find out whether in respect of the criminal proceedings any records were available with the Revenue and also to find out whether any statement at all were recorded from the assessee too .....

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again asked the Additional Government Pleader to find out whether anything was available with the police official or in the learned Magistrate Court as regards the seizure of records during the inspection. Learned Government Pleader placed before this Court the letter written by the Assistant Commissioner (CT) T.Nagar (North) Assessment Circle to the Special Government Pleader dated 10.03.2014 enclosing the copy of the letter received from the Superintendent of Police, Central Bureau of Investi .....

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cally no assistance in this matter from the Revenue to place the inspection records or for that matter search records to find out the statement recorded from the assessee, the details of the records recovered and the findings thereon. 9. Thus with the available materials, when we looked at the facts of the case, it is evident, particularly from the confirmation letters of the Indian Bank, as regards the granting of credit in favour of the suppliers and the bills discounted for the purchase of ra .....

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had not adverted to the facts as stated above on the other hand, it had relied on the decision of this Court reported in 1993(4) MTCR 4 and held that the case is not substantiated by the assessee." This Court allowed the tax case revisions and, accordingly, the assessee/the petitioner herein, succeeded in the tax case revisions on merits. 3. It is also pointed out by the learned counsel for the petitioner and not denied by the learned standing counsel for the Department that so far the Depa .....

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der was sent by the assessee/petitioner, which evoked no response forcing the petitioner to file a writ petition, W.P. No.29018 of 2014. 5. When the writ petition, W.P. No.29018 of 2014 was taken up for hearing, learned single Judge of this Court passed the following order dismissing the writ petition stating that the petitioner should approach the appropriate Tax Court. The relevant portion of the order is extracted herein below:- "In this writ petition, the petitioner seeks for refund of .....

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e tax case revision and for which purpose, a separate writ petition is not maintainable and that too before a Single Judge of this Court. 2. Accordingly, the writ petition is disposed of by giving liberty to the petitioner to file appropriate application in the tax cases revision numbers seeking for the relief sought for in this writ petition." 6. Thereafter, the petitioner pursued the matter by way of appeal in W.A. No.65 of 2015 and the Division Bench, by order dated 23.1.2015, passed the .....

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case revision. Thus, the proper course would be to prefer an application in the same Tax Case (Revision) Nos.119, 120 and 121 of 2009 for appropriate relief and as such, it was rightly held that the writ petition was not maintainable. The learned Writ Court has also granted liberty to the petitioner accordingly. We do not find any merit worthwhile to interfere with the order passed by the learned writ court. Accordingly, the writ appeal is dismissed, upholding liberty granted to the writ petitio .....

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Prabhakar, learned counsel appearing for the petitioner took pains to point out that the petitioner has no other option except to approach this Court in view of the order passed in the writ petition by the learned single Judge as confirmed by the Division Bench of this Court. Learned counsel submitted that there being no other effective and efficacious remedy under the statute, by which the petitioner could seek refund of the amount, which was deposited pursuant to the interim order of this Cou .....

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hs from the date of the revised assessment, interest is liable to be paid on the amount to be refunded on and from the said date, i.e., after three months, till the date of payment. 11. Heard the learned counsel appearing for the petitioner and the learned standing counsel appearing for the respondents/Department and also perused the material available on record. This Court also gave its anxious considerations to the different Sections of the Act and Rules on which reliance was placed by the lea .....

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ter either by reversing, confirming or amending the order against which the petitions were preferred. It is further submitted that it is the bounden duty of the authority to implement the order passed by this Court as envisaged under Rule 34 of the Tamil Nadu General Sales Tax Rules (for short 'the Rules'). For better clarity and appreciation of the matter on hand, Section 38 (4) (a) and Rule 34 are extracted hereinbelow:- "Sec. 38 (4) (a) - If the Special Tribunal does not dismiss .....

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the Special Appellate Tribunal shall, on authorisation by the Appellate Tribunal or the Special Appellate Tribunal, as the case may be, be given effect to by the assessing authority, who shall refund without interest, within three months from the date of communication of the authorisation, any excess tax found to have been collected, and for this purpose shall serve upon the dealer a notice in Form C notifying the dealer of the adjustment of excess tax towards arrears, if any, or if there are n .....

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cified in the notice." 13. A reading of Section 38 (4) (a) of the Act would reveal that the High Court, after hearing the parties, shall pass an order either reversing, affirming or amending the order on the question of law raised or pass such or other order as it thinks fit. 14. From a cursory reading of Rule 34, it is evident that the said rule mandates that the assessing authority shall give effect to the order of the High Court (Special Tribunal) within three months from the date of com .....

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t been followed by the assessing authority, thereby causing grave injustice to the petitioner. It is also not denied by the respondents/department that till date the order has not been given effect to by refunding the amount deposited by the petitioner. 16. In the above scenario, the moot question arises whether after disposal of the tax case revision, it would not be appropriate for the Court to entertain further miscellaneous petition, even if such petition does not touch upon the merits of th .....

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delivery of judgment in the main petition, held that to do complete and substantial justice to the parties in the proceedings, when the miscellaneous petition filed is curative in nature and not used for supplanting substantive law, in exercise of inherent powers, shall entertain such petitions for implementing the orders of the Court. For better clarity, the said portion of the order reads as under :- "86. We are unable to accept the said submission made by Mr Dwivedi and Mr Singh, since .....

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ere yet to be implemented, when particularly such orders were necessary for doing complete justice to the parties to the proceedings. To take any other view would result in rendering the orders of the Supreme Court meaningless. 87. In this regard, reference may be made to the Constitution Bench decision of this Court in Supreme Court Bar Assn. v. Union of India, referred to hereinbefore, wherein the question before the Bench was the power of the Supreme Court to punish for contempt of itself und .....

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es though are not limited by those statutes." (emphasis in original) This Court held that these powers also exist independent of the statutes with a view to doing complete justice between the parties. This power exists as a separate and independent basis of jurisdiction, apart from the statutes, and stands upon the foundation for preventing injustice in the process of litigation and to do complete justice between the parties. 88. This Court in Supreme Court Bar Assn. case further observed t .....

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e recourse to the provisions of Article 129 of the Constitution or under the provisions of the Contempt of Courts Act, 1971. 18. The inherent powers of the Court under Section 151 of the Code of Civil Procedure has been dealt with by the Supreme Court in the case of Jet Ply Wood (P) Ltd. - Vs - Madhukar Nowlakha (2006 (3) SCC 699 :: AIR 2006 SC 1260), wherein the Court held as under :- "25. The aforesaid position was reiterated by the learned Single Judge of the High Court in his order date .....

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l Procedure providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of Section 151 of the Civil Procedure Code can be resorted to in the interest of justice. The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This Court had occasion to ob .....

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llowed the application for withdrawal of the suit in exercise of inherent powers under Section 151 of the Code of Civil Procedure, upon holding that when through mistake the plaintiff had withdrawn the suit, the court would not be powerless to set aside the order permitting withdrawal of the suit." (Emphasis supplied) 19. A plain reading of the aforesaid decisions would reveal that the power of the Court does not end with the passing of the order, but more so, in seeing that the order is im .....

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ay back on 21.3.2014, the deposit, as made by the petitioner pursuant to the directions issued by this Court vide order dated 3.8.2010, has not been refunded back to the petitioner. Though the petitioner has made representation on 29.5.14 asking for refund, the Department had issued a reply stating that action will be taken after receipt of the orders of this Court. It is nowhere the case of the department that it has not received the orders of this Court. Inspite of passage of more than a year .....

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