9911796707
TMI Blog2019 (6) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Gujarat Value Added Tax Act, 2003 ("the GVAT Act" for short) and under Central Sales Tax Act, 1956 ("the CST Act" for short). Petitioner No.1 is now duly registered under the Central Goods and Services Tax Act, 2017 /Gujarat Goods and Services Tax Act, 2017. During the course of generation of electricity, petitioner No.1 company also generated fly ash as a byproduct. As per notification dated 14.9.1999 issued by the Ministry of Environment and Forest of the Government of India, petitioner No.1 company being coal or thermal based power plant, was required to make fly ash available for at least 10 years from the date of publication of the notification without any payment or consideration for the purpose of manufacturing ash based products. Therefore, for that purpose a Memorandum of Understanding was entered into by the petitioners with cement/brick manufacturers for granting permission to collect, lift and transport the fly ash. As per clause (2) of the Memorandum of Understanding, the fly ash was to be made available free of cost to the customer. However, as per clause (8) thereof, the administrative expenses were payable by the customer at the rate specified ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 75 of the GVAT Act for the year 2006-2007 expired on 10.2.2014. The time limit for reassessment under section 35 of the GVAT Act had also elapsed long back. The petitioners therefore, addressed a letter dated 11.8.2015 to the jurisdictional authority and requested to grant refund of the amount deposited for the year 20062007 since no proceedings were initiated for revision or reassessment. Reminder letter dated 31.12.2015 was also given by the petitioners to respondent No.2. The time limit for passing of revision order under section 75 of the GVAT Act is five years from the date of the order. Such time limit also expired on 10.2.2016. However, no response was received from the VAT authorities with regard to the application for refund made by the petitioners. Therefore the petitioners again issued reminder letter dated 21.6.2018 for grant of refund amount deposited under protest pertaining to the year 2006-2007. Another reminder was given on 3.8.2018 for grant of refund. 4.4 It is the case of the petitioner that inspite of repeated written and oral reminders given by the petitioner No.1 to the respondent authorities, no refund was granted of the amount deposited under protes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in the nature of predeposit and not payment of tax under the provisions of the Sales Tax Act, the amount deposited by an assessee is bound to be refunded in view of the fact that the appeal has been allowed by the Tribunal. Learned advocate for the petitioners also relied upon the decision in case of Maruti Wire Industries Pvt. Ltd. and others vs. Sales Tax Officer, First Circle, Mattancherry and others reported in 122 Sales Tax Cases 410 wherein the Apex Court held as under : "7. In view of the law laid down by the Constitution Bench, we are clearly of the opinion that the liability of the assesseeappellant to pay sales tax could have arisen either on return of turnover being filed by way of selfassessment or else on an order of assessment being made. No doubt rule 21 (7A) of the Kerala General Sales Tax Rules, 1963 casts an obligation on assessee to file a return of total turnover and taxable turnover accompanied by proof of payment of the amount of tax due within 20 days of the previous quarter but such a return was not filed by the appellant. A failure to file return of taxable turnover may render the assessee liable for any other consequences or penal action as provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery provisions which are construed like any other statute. The machinery provisions must, no doubt, be so construed as would effectuate the object and purpose of the statute and not defeat the same. (See Whitney v. Commissioners of Inland Revenue [1926] AC 37, Commissioner of Incometax v. Mahaliram Ramjidas [1940] 8 ITR 442 (PC), India United Mills Ltd. v. Commissioners of Excess Profits Tax, Bombay [1955] 27 ITR (SC) ; [1955] 1 SCR 810 and Gursahai Saigal v. Commissioner of Incometax, Punjab [1963] 48 ITR 1 (SC); [1963] 3 SCR 893). But it must also be realised that provision by which the authority is empowered to levy and collect interest, even if construed as forming part of the machinery provisions, is substantive law for the simple reason that in the absence of contract or usage interest can be levied under law and it cannot be recovered by way of damages for wrongful detention of the amount. (See Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji AIR 1938 PC 67 and Union of India v. A.L. Rallia Ram [1964] 3 SCR 164 at 185 to 190). Our attention was, however, drawn by Mr. Sen to two cases. Even in those cases, Commissioner of Incometax, A.P. v. M. Chandra Shekhar [1985] 151 ITR 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 the only contention which has been raised by the petitioners was with regard to levy of value added tax on fly ash and challenge to such levy by way of appropriate appeal. However, no such order in fact, has been challenged by the petitioners and the petitioners have preferred the present petition seeking the refund. It was submitted that filing of this petition is nothing but an attempt to take undue advantage of technical, legal procedure especially, where otherwise the issue of levy of tax on fly ash is not in dispute. It was therefore, submitted that so far as levy of value added tax is concerned, it is covered under Schedule II and Entry2c which covers fly ash read with sections 7 and 9 of the Act. Learned AGP further submitted that in response to the show cause notice issued on 25.10.2013, the petitioners made payment for the tax liability along with interest and, therefore, there is clear admission of liability by the petitioners with reference to levy of tax on fly ash for which the petitioners have not filed any proceedings before any forum. It was therefore, submitted that question of reassessment or revision does not arise because the transactions are not in dispute an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 2011 from the sales of fly ash and the value for the sale of fly ash was included in the gross turnover of sales stated in the return for the relevant month and hence, no payment was required to be made from March 2011 onwards. Thus, it is clear that the petitioners have deposited amount of Rs. 46,43,174/under protest. 13. On perusal of the documents produced on record, there is nothing to show that any reassessment order under section 35 of GVAT Act or any revision order under section 75 of the GVAT Act has been passed by the respondent VAT authorities. The petitioners have deposited the aforesaid amount under protest. There is no return filed by the petitioners which can be considered as self assessed tax in the year 2006-2007. Therefore the question of payment of tax would arise only when VAT liability is crystallized, either by way of self assessment or by way of assessment by the authorities. In the present case, neither of these two situations have arisen. The amount of deposit of Rs. 46,43,174/made by the petitioners under protest is required to be seen in the light of its possible liability of tax which would have been ascertained at a future date. However, such ascerta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay High Court in case of Suvidhe Ltd. v. Union of India reported in 1996 (82) ELT 177 (Bom.), wherein it was held that a deposit under section 35F of the Central Excise Act, 1994 is not a payment of duty but only a predeposit for availing the right of appeal. Such amount is bound to be refunded when the appeal is allowed with consequential reliefs. On the basis of same analogy, it was held that as the amount deposited by the assessee is in the nature of predeposit and not payment of tax under the provisions of the Sales Tax Act, the amount deposited by it is bound to be refunded in view of the fact that the appeal has been allowed by the Tribunal. 15. Decision in case of Maruti Wire Industries Pvt Ltd. (supra), is also applicable to the facts of the present case. In the said case, it has been held that tax can become due and payable on the date on which return was filed by the petitioner. Therefore, in the facts of the present case, the petitioners have not filed any return of income nor any assessment, reassessment or revision order is passed by the respondent adjudicating upon the amount deposited by the petitioners, therefore, same cannot be retained by the respondents. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court in Salonah Tea Co. Ltd. v. Superintendent of Taxes, Nowgong (supra), in case where money is paid by mistake, the period of limitation prescribed is three years from the date when the mistake was known. Besides, section 17 of the Limitation Act inter alia provides that when a suit or application is for relief from the consequences of a mistake, the period of limitation would not begin to run until the plaintiff or applicant has discovered the mistake, or could, with reasonable diligence, have discovered it. Therefore, in case where money is paid under a mistake, the limitation would begin to run only when the applicant comes to know of such mistake or with reasonable diligence could have discovered such mistake." 18. In the present case, the petitioners have made an application for refund for the first time on 11.8.2015 wherein it was stated that the assessment for the year 2006-2007 under section 34 of the GVAT Act was completed in February 2011 accepting the facts and figures as per annual return and VAT audit report. In August 2013, flying squad issued notice in Form 401 seeking details of amount collected towards maintenance of fly ash collection system. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. In facts of the case, the petitioners have no other alternative efficacious remedy but to approach this court as refund of the amount deposited by the petitioners under protest cannot be adjudicated under any provisions of the GVAT Act and the respondent authorities have no jurisdiction to grant such refund and, therefore, only remedy available to the petitioners is by way of filing the petition under Article 226 of the Constitution as the amount paid by way of deposit is neither a duty or tax to which the provisions of the GVAT Act would be applicable and as a consequence, the machinery provision under the GVAT Act would not apply to refund of such amount. 20. In the light of the above discussion, when the petitioners have deposited the amount of Rs. 46,43,174/under protest for which no adjudication order is passed by the authorities, such claim being outside the purview of enactment can be made either by way of a suit or by way of writ petition. As the amount is paid neither by way of self assessment or pursuant to any demand, it is always open for the petitioners to bring it to the notice of the authorities concerned and claim the refund of amount of such deposit. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
