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TMI Blog2017 (1) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... ealer under the provisions of the Act, assessed by opposite party no.1 under the provisions of Section 4 (4) of the Act for the assessment year 1993-94, determined the refundable amount to the tune of Rs. 2,53,438/- in OJC No.14041 of 2001 and Rs. 2,41,132/- in OJC No. 14042 of 2001, being the excess deposit of sales tax by the petitioner. Opposite party no.1 had initiated assessment proceeding and in the assessment order, the refundable amount was determined at Rs. 2,25,038/- in OJC No.14041 of 2001 and Rs. 2,13,592/- in OJC No. 14042 of 2001. The petitioner being aggrieved, filed appeal before opposite party no.2 and opposite party no.2 vide its order determined the refundable amount at Rs. 2,25,038/- and Rs. 2,34,292/- in OJC Nos. 14041 of 2001 and 14042 of 2001 respectively. The petitioner after the assessment, had submitted applications for refund, but no order has been passed for refund of the amount on the garb of pendency of reassessment under Section 12(a) of the Act. When the reassessment under Section 12(8) has been passed determining the refundable amount, the petitioner had again filed an application afresh for refund of the amount along with interest. It is the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of ninety days, then it will be entitled to get interest from the date of order till the date of payment excluding the period of ninety days. In the light of this submission, it has been submitted by the learned counsel representing the Revenue that the authorities after determining the assessment on the basis of the provision as contained in Section 12(8) of the Act, has refunded the excess amount paid by the assessee within a period of ninety days in OJC No.14041 of 2001 while in OJC No. 14042 of 2001 since it has been paid after seven day from the date of expiry of ninety days, hence, interest for the 97 days has been paid to the assessee. Therefore, it has been submitted that the assessee is not entitled to get further interest. 6. We have heard the learned counsel for the parties and perused the documents available on record. 7. Before appreciating the rival submission advanced on behalf of the parties, we thought it proper to have a discussion with respect to the statutory provisions. It is necessary for the purpose of adjudication of the issue involved in this case. The relevant provision for the purpose is the provision of Section 11, which contains for filing of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 14-D deals with power to withhold refund in certain cases, which reads as follows: "Where an order giving rise to a refund is the subject matter of an appeal or further proceeding under this Act, the Commissioner may, if he is of the opinion that the grant of refund is likely to adversely affect the revenue, withhold the refund till such time as he deems proper." 8. It is evident from the provision as contained in Section 14 of the Act that the amount would be refunded if paid excess of the amount over and above the amount of tax provided that no claim to refund of any tax penalty or interest paid under the Act shall be allowed unless it is made within twenty-four months from the date on which the order of assessment or order imposing penalty as the case may be was passed or from the date of the final order passed on appeal, revision or reference in respect of the order earlier mentioned whichever period is later. Further provided that no claim to refund of any tax or penalty or interest paid under the Act shall be allowed in cases where there is order for reassessment, until the reassessment is finalized. Section 14-C provides for payment of interest on refundable a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Section 12(8) of the Act. Moreover, refund has been made within the stipulated period as provided under Section 14-C. 10. The sole question fell for determination in these two cases is as to whether during the pendency of the reassessment order in exercise of the powers conferred under Section 12(8) of the Act, the assessee is entitled to get interest from the date of first assessment order under Section 12(1) of the Act. 11. Learned counsel representing the petitioner in both the cases, apart from the factual aspects, has relied upon the unreported orders passed by this Court in OJC No. 4920 of 2000(Sri Hemanta Kumar Chhatoi v. Asst.Commissioner of Sales Tax and others) and WPC No. 5139 of 2002 (Sri Radheshyam Agarwala v. Sales Tax Officer, Cuttack-I East Circle and another) and the Full Bench judgment of this Court rendered in the case of Ideal Industries Limited v. State of Orissa and others rendered in OJC No. 9087 of 1997. While on the other hand, learned counsel representing the Revenue has relied upon the unreported judgment delivered by this Court in OJC No. 8920 of 1999 disposed of on 27.11.2015 (M/s.Dabur India Ltd. V. Sales Tax Officer and another) and reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which goes to suggest that there was suppression of material facts in showing the return. It is gathered from the record of the case that the assessing authority has refunded the excess amount paid by the assessee within the statutory period and in one of the case it was after seven days of expiry of the period of ninety days, hence, the interest of ninety seven days has been paid. 14. Learned Sr.Counsel for the petitioner has relied upon the unreported judgment, i.e. one passed in OJC No. 4920 of 2000 by a coordinate Bench of this Court, but we after going through the said order have found that this Court has passed order holding therein that the refund flows from the first order, but we have not found from the said order as to whether the said case was also subjected to reassessment under the provisions of Section 12(8) of the Act and as such, the same cannot be said to be applicable to the facts and circumstances of the present case. The judgment passed by this Court in WPC No. 5139 of 2002, relied upon by the petitioner, although has been passed in the pretext of the provisions of Section 12(8) of the Act, but in that case the order for refund was passed on 2.6.1998 and witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Orient Paper Mills and another (supra) is concerned, although the factual aspect of the said case is altogether different, the same is not relevant for the purpose of determination of the issue involved in this case. 16. There is no dispute about the settled proposition that the provision for charging interest is introduced in order to compensate for the loss occasioned to the revenue due to delay in payment of tax as also payment of interest on the excess payment of tax liability, the assessee is entitled to get refund of the amount along with interest, the purpose being is to compensate the assessee. It is also not in dispute that it is only after determination of the questions of fact, the Assessing Officer having the order holding that the assessee is liable to pay the tax, which he had not paid and vice versa, the assessee is also entitled to get refund of the amount after the final assessment having been made by the Assessing Officer, and if on final determination, found that the assessee is entitled to get refund, certainly the interest will be paid to compensate the assessee. 17. As we have observed herein-above that it is a case of misrepresentation and suppress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, rather it has been accepted, which goes to suggest that there is suppression and misrepresentation by the assessee in submitting the return. Taking into consideration this aspect of the matter, the assessee cannot be allowed to get the interest from the date of first order passed for refund of the excess amount, otherwise, there would be no meaning to go for reassessment, rather it will be said to be rewarding the assessee by making payment of interest from the date of first order showing refund of the excess amount even in the case of suppression and misrepresentation in submitting the return by the dealer. 20. Accordingly, we are of the considered view that the assessee would be entitled to get interest only when the assessment for the particular year would be concluded finally. Hence, the contention of the petitioner that it is entitled to get interest from the date of first application, which has been filed by it after the first order of refund of amount has been passed, is not acceptable to this Court for the aforesaid reason. As has been submitted by the learned counsel for the parties, after the final order having been passed by the competent authority in exercise of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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