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TMI Blog2015 (12) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... 68,928/on 15.07.2009 for the period from 01.04.2009 to 30.04.2009 while Rs. 193/on 29.09.2010 for 01.02.2010 to 21.02.2010 and the last amount, which is the subject matter of the present petition in the sum of Rs. 41,34,650/on 28.03.2013 for 01.04.2009 to 30.09.2009. The petitioner had made an application on 11.06.2010 in Form E501 for refund of excess taxes paid. The decision by refund officer was taken as late as on 16.12.2012. The adjustment, as per the said order dated 16.12.2012 was actually made by order dated 21.03.2013 in the sum of Rs. 41,34,650/by voucher dated 20.03.2013 by direct deposit. The demand for interest was projected by Assistant Commissioner of Sales Tax on the ground that the petitioner was liable to pay interest in accordance with the Section 32 of the Act since he defaulted in making payment of tax and that is why the demand in question was projected by the Officer and even the bank account was frozen. In this context, the petition was heard. 4. Mr. Aditya Gohokar, Learned counsel for the petitioner, submitted that the application for refund was made on 11.06.2010 and Section 51 of the Act, which deals with grant of refunds. At it was before the amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat did not absolve him of his liability to pay taxes on regular basis and as and when due. In other words, even if the amount of refund was lying with the department, there is no provision allowing exemption to the petitioner not to pay taxes on regular basis as and when it accrued. According to the learned A.G.P., the petitioner, admittedly did not pay major amount of tax but for Rs. 68,928/on regular basis and awaited for refund amount, which is not contemplated by law. According to the learned A.G.P., the liability to pay tax never stops and, therefore, the petitioner cannot get any benefit and must be held to be registered dealer having failed to pay tax for the year 200910 on regular basis. He, therefore, submitted that there was nothing wrong with the officer in demanding interest from the petitioner, in accordance with the provisions of Section 30 (2) of the Act. Since, according to Mr. Patil, the order of refund application can never be speculated inasmuch as it would go even against the petitioner. He, therefore, prayed for dismissal of the present writ petition. CONSIDERATION: 6. Upon hearing learned counsel for the parties, we find that the petitioner had raised a cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t covered under the Package Scheme of Incentives2001, Package Scheme of Incentives2007 or, as the case may be, Package Scheme of Incentives2013; or [(iv) **********] (v) the Canteen Stores Department or the Indian Naval Canteen [services; or] (vi) selling the goods in the course of inter-State trade or commerce and turnover of the said inter-State sales in immediate previous year exceeds fifty per cent. of his total turnover of sales for that year. then he may apply in the prescribed form to the Commissioner after filing the return for grant of refund relating to the period covered by a return, fresh return or revised return. Explanation. For the purposes of subclause (i), the expression "exporter" shall means a registered dealer whose turnover of exports during such period as may be prescribed, is not less than such percentage of the total turnover of his sales as may be prescribed in this behalf. (b) The Commissioner, on receipt of the said application, may require the dealer to furnish such bank guarantee for such amounts from such banks, for such periods and to such authorities as may be prescribed. (4) Save as otherwise provided in this section, the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return relates." It is not in dispute that by amendment to Section 51 by Maharashtra Act No. 15 of 2011 w.e.f. 01.05.2011, words "within one month of the receipt of the application" have been substituted. It is clear from the reading of the said provision that the application, in the present case, was made on 11.06.2010 for refund and the Commissioner, within one month of receipt of the application, could have called for such additional information from the dealer as he may think fit. In the present case, admittedly, additional information was called by the Commissioner after 9 months of the receipt of the application, which could not have been done after the expiry of one month. 7. The next provision is that order of refund was requested to be passed within a period of three months of the receipt of the application or receipt of additional information whichever is later. The question of calling additional information after nine months in this case did not arise and, therefore, the Commissioner was under a legal obligation to make order of refund or otherwise on or before 10.09.2010. However, in the present case, order of refund was made on 16.12.2012 i.e. after more than thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in order to harmonies the two provisions. "30. Interest payable by a dealer or person:( 1) A dealer who is liable to pay tax in respect of any year, and who has failed to apply for registration or has failed to apply for registration within the time as required by or under this Act, shall be liable to pay by way of simple interest, in respect of each of such years, in addition to the amount of tax payable in respect of such year, a sum calculated at the prescribed rate on the amount of such tax for each month or part thereof for the period commencing on the 1st April of the respective year to the date of the payment of tax. The amount of such interest shall be calculated by taking into consideration the amount of, and the date of, such payment, when the payment is made on different dates or in parts or is not made. When, as a result of any order passed under this Act, the said amount of tax is reduced, the interest shall be reduced accordingly and where the said amount is enhanced, 1[the interest on the enhanced amount shall be calculated mutatis-mutandis up to the date of such order]: Provided that, in respect of any of such years, 2[the amount of interest payable] under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lculated by taking into consideration the amount and the date of such payment. If, as a result of any order passed under this Act, the said amount of tax is reduced, then the interest shall be reduced accordingly and where the said amount is enhanced, then interest on the enhanced amount shall be calculated mutatis mutandis up to the date of such order from the said date next. (4) If, (a) after the commencement of, (i) audit of the business of the dealer in respect of any period, or (ii) inspection of the accounts, registers and documents pertaining to any period, kept at any place of business of the dealer, or (iii) entry and search of any place of business or any other place where the dealer has kept his accounts, registers, documents pertaining to any period or stock of goods, (b) in consequence of any intimation issued under subsection (7) of section 63, the dealer files one or more returns or, as the case may be, revised returns in respect of the said period, then he shall be liable to pay by way of interest, in addition to the amount of tax, if any, payable as per the return or, as the case may be, revised return, a sum equal to 25 per cent. of the additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is preposterous, in our opinion, and a retrograde step. In our opinion, section 30 (2), therefore, will have no application in the present case. The petitioner cannot be blamed for not making payment and it is the concerned officer, who did not pass order within three months and created the entire chaos. Thus we hold that the respondent-concerned Assistant Commissioner, Sales Tax, who has issued demand notice is deemed to be aware of this factual and legal position since the order of refund was communicated to him and the petitioner is not at fault since the refund officer himself did not act according to law. Without thinking so, the Assistant Commissioner, issued the demand notice which, in our opinion, is a reckless act. We, therefore, think that the petitioner must be compensated by the department by an order of compensatory costs to be recovered by the department from the officer who is at fault. 11. In the result, we pass the following order. ORDER (i) Rule is made absolute in terms of prayer clause (A). (ii) The prayer made in prayer clause (b) is rejected. (iii) Respondents shall pay cost in the sum of Rs. 10,000/to the petitioner within a period of four weeks from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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