TMI Blog2016 (8) TMI 1337X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, it is presumed that the petitioner has collected tax from its consumers as a manufacturer of non-alcoholic beverages. It is not the stand of the petitioner that the burden of amount of interest paid by it was not passed on to the consumers. The petitioner cannot claim that the interest would not be payable as the same is payable in either situation for non-filing of return or for not filing the deferred tax returns. There was no immunity to pay the tax amount and consequently the interest. Once the interest has been deposited, the burden of the said interest must have passed on to the consumers. The interest for not paying tax in terms of Section 24 of the VAT Act or seeking deferment in terms of Section 96(3)(b) of the VAT Act is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2000 to 27th of June, 2003. Since the petitioner satisfied the requirement of exemption from Sales Tax, the same was granted for 10 years i.e. from 14th of April, 1998 to 13th of April, 2008 with a ceiling of 150 per cent of the fixed capital investment. Consequent to the exemption granted, the goods produced by the petitioner were treated to be exempted from payment of Sales Tax in terms of Section 7(3)(b) of the Bihar Finance Act, 1981. 3. During the period when the exemption from payment of taxes was being availed by the petitioner, the Bihar Value Added Tax Act, 2005 (hereinafter referred to as VAT Act ) came into force on 1st of April, 2005. In terms of Section 96(3)(b) of the VAT Act, the unit enjoying the benefit of exemption f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VAT. Such representation remained unsuccessful. It is thereafter the petitioner invoked the writ jurisdiction of this Court. 7. In the counter affidavit, the stand is that once the VAT Act came into force with effect from 1st of April, 2005, the exemption granted under the Bihar Finance Act, 1981 and the notification issued there under became redundant. The remaining period of exemption was provided to be optional for deferment. Any delay in payment of deferred amount of tax was to carry interest over it in terms of Rule 57 of the Bihar Value Added Tax Rules, 2005 (hereinafter referred to as the VAT Rules). It is averred that petitioner did not opt for deferment of his VAT liability by applying in Statutory Form A-XII to his Circle Inch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 14th of April, 1998 to 13th of April, 2008 but due to enactment of the VAT Act with effect from 1st of April, 2005, the provision of exemption came to an end. Section 96 of the VAT Act contains transitory provisions which reads as under:- 96 (3) Where- (a) any dealer has been granted the facility of deferment of tax payable under section 23A of the Bihar Finance Act, 1981, (Bihar Act 5 of 1981) as it stood before its repeal by section 94, and who has, on the commencement of this Act, not availed of the full entitlement, he shall be allowed to continue to defer the tax payable under this Act, in the manner and to the extent prescribed; (b) any dealer has been granted the facility of exemption from payment of tax under clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deferment the deferred tax is not paid within the time specified in clause (a), interest at the rate of one and half percentum per month or part thereof shall be payable on such amount of default till the date of its payment without prejudice to any action that maybe taken for recovery under the Act. Explanation- For the purpose of this rule, the expression unavailed entitlement shall mean the remaining period or the remaining monetary ceiling, whichever may be applicable, of exemption to which such unit would have been entitled on the appointed date. 12. The petitioner did challenge the provisions in Section 96 of the VAT Act before this Court. But the said writ application is pending and there is no interim protection granted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has collected tax from its consumers as a manufacturer of non-alcoholic beverages. It is not the stand of the petitioner that the burden of amount of interest paid by it was not passed on to the consumers. The petitioner cannot claim that the interest would not be payable as the same is payable in either situation for non-filing of return or for not filing the deferred tax returns. There was no immunity to pay the tax amount and consequently the interest. Once the interest has been deposited, the burden of the said interest must have passed on to the consumers. 15. Therefore, the petitioner would not be entitled to its refund as it will be a case of undue enrichment as laid down by the Supreme Court in the case reported as Mafatlal Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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