TMI Blog2015 (10) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... ity on 8.11.2004, whereupon the appellant became entitled to the refund. Therefore, amount due by way of refund under an order dated 8.11.2004 could not have been adjusted against the tax liability of the year 2000-2001. It may be that for the period the Department retained the moneys of the appellant, it may be entitled to interest thereon from the date on which such amount had been paid, however, the claim for adjustment of such amount towards the tax dues of the year 2000-2001 at the relevant time was wholly without any basis. Under the circumstances, it is not possible to state that the impugned order passed by the Tribunal suffers from any legal infirmity so as to give rise to a question of law, much less, a substantial question of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the petitioners. (D) Whether on the facts and under the circumstances of the case and true or correct interpretation of section 54 of the Sales Tax Act, the Tribunal was justified in not granting the due interest to the petitioners on the refund amount that arose because of excess payment in the earlier year. (E) Whether the Tribunal was justified in not passing a just and proper order as contemplated under section 60(6) of the Sales Tax Act. 2. The facts stated briefly are that the appellant was assessed for the year 2000-2001 on 31.3.2005. Against the assessment framed by the Assessing Officer, the appellant preferred an appeal before the Joint Commissioner of Commercial Tax, Appeals-3, which came to be dismissed by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is required to refund to a person the amount of tax and penalty (if any) paid by such person in excess of the amount due from him. The refund may be either by cash payment or, at the option of the person by deduction of such excess from the amount of tax and penalty due in respect of any other period. It was submitted that in the facts of the present case, refund was due to the appellant in respect of the year 1999-2000 and that the appellant had exercised the option under section 52 of the Act and asked the Assessing Officer to adjust the same against the amount due in respect of the tax demand for the year 2000- 2001. It was submitted that the department had ultimately accepted the claim of refund and had also adjusted the amount of refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as may be formulated by this court. 4. This court has considered the submissions advanced by the learned counsel for the appellant and has perused the impugned order passed by the Tribunal as well as the orders passed by the lower authorities. 5. The facts as emerging from the record reveal that the appellant claimed that it was entitled to refund for the year 1999-2000 and called upon the Assessing Officer to adjust the amount of such refund towards the tax demand for the year 2000-2001. It may be noted that at the relevant time when the appellant claimed adjustment of refund towards the tax liability in respect of the year 2000-2001, there was no assessed or adjudicated amount of refund and the amount of refund as claimed by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that refund of a different tax period cannot be claimed in the return. The Tribunal also was of the opinion that there was no such column either in the return or in the revised return and, therefore, the appellant was not entitled to claim refund in the revised return. The Tribunal also was of the opinion that the so-called revised return was time barred, inasmuch as, in terms of sub-section (3) of section 40 of the Act, such revised return was required to be filed within the last three months from the date prescribed for filing the original return. Lastly, the Tribunal was of the view that the alleged refund could not be said to have become due until it was decided by the competent authority. That a dealer concerned cannot himself calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, for the purpose of being entitled to such refund, the precondition would be that there should be a determination by an authority under the Act, that the person has paid amount in excess of the amount due from him. It is only after such determination, that the question of exercising option for deduction of such amount from the tax and penalty due in respect of any other period would arise. Accordingly, had the amount of refund for the year 1999-2000 been already determined, the appellant would have been justified in asking for adjustment of refund against the tax dues of the subsequent year. However, in the present case, on the date when the appellant exercised the option under section 52 of the Act for adjustment of refund for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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