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2015 (10) TMI 359 - GUJARAT HIGH COURT

2015 (10) TMI 359 - GUJARAT HIGH COURT - [2015] 86 VST 152 (Guj) - Levy of interest - tribunal confirmed the demand of interest without considering the heavy amount of refund, due for the previous period, available for adjustment against the dues for the succeeding year - Held that:- On the date when the appellant exercised the option under section 52 of the Act for adjustment of refund for the year 1999-2000 against the tax dues of the year 2000-2001, his entitlement to refund for the year 1999 .....

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he 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, so as to warrant interference. - Decid .....

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following questions stated to be substantial questions of law :- (A) Whether on the facts and under the circumstances of the case and the true and correct interpretation of the section 47(4A)(b) of the Sales Tax Act, the Tribunal was justified in confirming the levy of interest. (B) Whether on the facts and under the circumstances of the case, the Tribunal was justified in not considering the heavy amount of refund, due for the previous period, available for adjustment against the dues for the .....

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s 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 assessme .....

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red was less than 15% of the inter-State works contract. While deciding the first appeal on remand, the first appellate authority considered the said issue and reduced the tax demand. However, the penalty in proportion to the tax demand came to be retained and the interest was re-calculated and was levied for a period of 36 months on the amount of tax dues. The appellant had raised a contention with regard to levy of interest and penalty; however, the same came to be rejected. Being aggrieved, t .....

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sions of section 52 of the Act, which provide for refund of excess payment. It was submitted that by virtue of the provisions of section 52, the Commissioner 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 t .....

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the appellant for the year 1999-2000 was lying with the Government exchequer much before the liability arose in respect of the year 2000-2001. It was submitted that the appellant had already called upon the concerned officer to adjust the amount of refund towards the tax liability in respect of the year 2000-2001 and hence, no interest could have been levied on the demand of tax for the year 2000-2001. In support of his submission the learned counsel placed reliance upon the decision of the Sup .....

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of the assessment year to the date of grant of refund. The learned counsel also placed on record a statement indicating the correct manner of computing the tax dues as per appeal order, to point out that if the tax dues are computed in terms thereof, no case for levy of interest would arise. It was submitted that the appeal, therefore, does give rise to substantial questions of law, as proposed or as may be formulated by this court. 4. This court has considered the submissions advanced by the l .....

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x 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 appellant had not yet been determined. Nonetheless, it was the case of the appellant that it was entitled to certain refund and that such amount should be adjusted in respect of the demand for the year 2000-2001. Before the Tribunal on behalf of the revenue, it was submitted that though the appellant had a right under section 52 of the Act to opt for adju .....

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come due only when the authority (in the present case the first appellate authority) had accepted the submission and granted refund. It was argued that in no case the dealer has a right to decide the refund and adjust the same against any tax liability. The Tribunal after considering the submissions advanced by the learned counsel for the respective parties found that it is an admitted fact that the appellant was granted refund for the year 1999-2000. The said refund was actually quantified when .....

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arred, 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 calculate the refund and claim the same in the return and that in the present case, the refund had become due .....

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e claim to the appellant was yet to be adjudicated. However, the appellant proceeded on a presumption that it was entitled to a refund and accordingly called upon the assessing authority to adjust the refund that may become due and payable in relation to the year 1999- 2000 against the tax dues of the year 2000-2001. For this purpose the appellant placed reliance upon the provisions of section 52 of the Act, which provides that the Commissioner shall refund to a person the amount of tax and pena .....

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