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M/s. P.P.G. Asian Paints Pvt. Ltd. Versus Deputy Commissioner, Commercial Tax And 2 Others

2016 (1) TMI 830 - ALLAHABAD HIGH COURT

Refund of tax paid - Interstate sale or stock transfer - release of the bank guarantee - According to the petitioner, the goods were directly dispatched to its depots located in the State of U.P. and that the goods did not move in pursuance of any pre-determined contract or sale. - Held that:- until and unless there is an adjudication and an authority finds that the amount is refundable, no amount can be refunded to the petitioner at this stage since we find that the assessment proceedings are s .....

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sh security or in the instant case, the bank guarantee. - In the light of the aforesaid, the impugned notice dated 15.12.2015 directing the petitioner to extend the bank guarantee can not be sustained and is quashed. The petitioner is entitled to get its bank guarantee released. - Decided in favor of assessee. - Writ Tax No. 28 to 34 of 2016 - Dated:- 19-1-2016 - Hon'ble Tarun Agarwala And Hon'ble Vinod Kumar Misra, JJ. For the Petitioner : Suyash Agarwal, Rakesh Ranjan Agarwal For the .....

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t the goods did not move in pursuance of any pre-determined contract or sale. The present dispute relates from the assessment year 2005-06 (central) to the assessment year 2011-12 (central) with regard to stock transfers, for which separate writ petitions have been filed. For facility, the facts of the Writ Tax No. 28 of 2016 relating to the assessment year 2005-06 (Central) is being taken into consideration. For the assessment year 2005-06 (central), the petitioner disclosed the stock transfers .....

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disposal of the appeal. As a result of the interim order granted by the tribunal, the petitioner deposited 40% of the disputed tax in cash but was still required to furnish security for the balance 60% as per Section 10 (1) of the U.P. Trade Tax Act, which the petitioner furnished by way of a bank guarantee as it had no immovable property in the State of U.P. This bank guarantee was accepted by the Assessing Authority to the extent of 60% of the disputed tax. Eventually, the appeal was allowed .....

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rity for ₹ 1,12,89,918/-. Similarly, the petitioner had also deposited cash/fixed deposit and furnished bank guarantee for the subsequent assessment years. The petitioner also filed an application dated 11.12.2015 before the Assessing Officer for release of the bank guarantee. The petitioner pointed out that two such bank guarantees were valid till 31st December, 2015. The Assessing Officer, instead of passing orders on the two applications as stated aforesaid, issued a notice dated 15th D .....

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bank also issued a notice dated 31st December, 2015 directing the petitioner to renew the bank guarantee, failing which they would encash the bank guarantee and credit the account of the Commercial Tax Department. The petitioner contends that he was left with no choice but to renew the bank guarantee and accordingly renewed the bank guarantee for a period of one month, i.e., till 31st of January, 2016 and thereafter, has filed the present writ petition praying for the quashing of the notice date .....

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f the parties, we are deciding the writ petition at the admission stage itself without calling for a counter affidavit. We have heard Sri Rakesh Ranjan Agrawal, the learned Senior Counsel alongwith Sri Suyash Agrawal for the petitioner, Sri C. B. Tripathi, the learned Special Counsel for the Commercial Tax Department and Sri Satish Chaturvedi, the leanred counsel for the State Bank of India. In so far as the refund of the disputed tax is concerned, the learned Senior Counsel has relied upon a de .....

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t has not been considered by the Full Bench in Lucent Technologies Pvt. Ltd. Vs. Commissioner, Trade Tax, U.P., Lucknow, [2015] 82 VST 371 [FB] and, therefore, expressed a desire that the matter should be referred to a Larger Bench. Having heard the learned Senior Counsel on this issue at some length, we are of the opinion that the matter relating to refund of the tax deposited is squarely covered by a decision of the Full Bench of this Court in Lucent Technologies Pvt. Ltd. (supra). We also fin .....

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ourt in Commissioner of Sales Tax, U.P. Vs. M/S Hind Lamps Ltd. 2008 U.P.TC 978. The Full Bench, thereafter, concluded that where the case is remanded back by the Appellate Authority to the Assessing Authority under Section 9 or Section 10 of the U.P. Trade Tax Act after setting aside the assessment order without any specific direction to refund the amount, in that eventuality, it was not obligatory on the part of the Assessing Officer to refund the amount. In the light of the aforesaid decision .....

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he same was furnished by the petitioner towards security of the stayed amount of disputed tax under Section 10 (8) of the U.P. Trade Tax Act. For facility, the said provision is extracted hereunder:- "(8) Where the Tribunal passes an order under this section for the stay of recovery of any tax, fee or penalty or for the stay of the operation of any order appealed against and such order of the Tribunal results in the stay of recovery of any tax, fee or penalty, such stay order of the Tribuna .....

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