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TMI Blog2015 (10) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... reed that factual matrix in all the appeals is similar and may be disposed of by one common order. For brevity, the facts are being extracted from VATAP No. 60 of 2013. 2. VATAP No. 60 of 2013 has been preferred by the assessee under Section 36 of the Haryana Value Added Tax Act, 2003 (in short "the Act") against the order dated 11.11.2011 (Annexure A-6) passed by the Haryana Tax Tribunal, Chandigarh (hereinafter referred to as "the Tribunal") in STA No. 42 of 2007-08 for the assessment year 2001-02. The appeal was admitted on March 18, 2014 for determination of the following substantial questions of law:- (i) Whether on the facts and circumstances of the case, the Ld. Tribunal was justified in upholding the order of Revisional Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the assessing authority, Faridabad. However, there was a dispute with regard to the levy of tax on the existing stock on 25.6.2001 as the first sale had already taken place within the State of Haryana and as such the L-1 and L-2 licencees were not liable to pay tax on the same in terms of Entry in Schedule 'C'. The said dispute came up for consideration of this Court in CWP No. 19748 of 2001 wherein this Court vide order dated 7.3.2002 held that no tax was leviable on the sale of stock of liquor available with the dealer as closing stock on 25.6.2001. Since the appellant had already paid the tax amounting to Rs. 76,38,177/- on the pending stock, it claimed refund of tax. The assessment proceedings for the year 2001- 02 were initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n tax was payable at the stage of sale made for the first time in the State of Haryana by an excise licencee. Again on 15.10.2001, it was made tax free. It was urged that the dispute only relates to the period from 26.6.2001 upto 14.10.2001 and since the dealer had sold the liquor without charging any tax on the stock held as on 25.6.2001, there was no question of unjust enrichment and the assessee was entitled for the refund as claimed by it. Learned counsel for the appellant had relied upon opinion of Shri Yudhavir Singh, Member of the Tribunal, wherein, it was expressed that the dealer had not collected any tax from the customers. The applicability of judgment in CWP No. 13652 of 2005 (M/s Jatinder Singh & Co. Vs. State of Haryana and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f bills and sales statement which shows that equal price has been charged even in taxable as well as tax free periods. He also submitted that he has not charged any tax from the customers and also cited judgment of Hon'ble Supreme Court reported as 71 STC 226 SC, wherein it has been held that a dealer charged from purchaser from money by itself would not attract the charge of excess collection. Collection of excess amount is not impermissible but what was not permissible was realization of excess amount as tax. He also produced various documents which shows that the dealer has not charged any amount by way of tax and only charged sale price. Since the dealer has not collected any tax the judgment of Hon'ble Supreme Court reported as 111 STC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b and another v. Kalsi Pipes Pvt. Ltd. (2010) 29 VST 492 (P&H) had recorded as under:- "We repeatedly asked the learned State counsel as to how the finding of fact would be vitiated when the rate of Rs. 48.50 has been charged even in respect of the period for which refund amount has been claimed. We also asked the learned counsel to substantiate how it would amount to undue enrichment when the dealer- respondent has not collected tax from the third party. There has not been any satisfactory explanation. The Assessing Officer as well as the appellate authority are presumed to have gone through the books of account and the entry of Rs. 48.50 must have been duly reflected. There is no whisper in the grounds of appeal alleging anything to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's case, it has been found that the petitioner has charged tax on the stock, which was available with him on 26.6.2001. The petitioner having been found collected tax, cannot take refund thereof simply because imposition of tax was found to be illegal."
12. The factual matrix being different from present appeals, the reliance on the said pronouncement was misplaced. In view of the above, we are unable to subscribe to the opinion of the majority. The finding recorded by the Tribunal is thus, legally unsustainable.
13. In the light of the discussion made above, substantial question (ii) is decided in favour of the assessee-appellant. Consequently, issues (i) and (iii) are rendered academic. The appeals stand disposed of accordingly. X X X X Extracts X X X X X X X X Extracts X X X X
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