TMI Blog2019 (11) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... the tax for the next year i.e. 2015-16. Thus, if the respondent authorities has passed the assessment order for the period 2014-15 prior to passing of order under section 39(2) for the period 2015-16, there would not have been any tax liability of the petitioner for the period 2015-16 which was calculated to the tune of ₹ 13.32 crores (approx) and which comes to ₹ 20.11 crores (approx) after adding of interest. From the facts stated and the documents referred to hereinabove the respondent no. 2 cannot be permitted to blow hot and cold at the same time. On one hand he states that the refund of ₹ 15,04,59,365/- for the financial year 2014-15 was credited to the account of the petitioner vide challan no. 297 dated 31.03.2015 and also in the assessment order for the period 2014-15 a sum of ₹ 15,33,20,981/- is found refundable to the petitioner and it has been stated that the same would be refunded by adjustment for the period 2015-16 but in the order impugned dated 12.01.2019 for the period 2015- 16, a further sum of ₹ 13,32,32,322/- is found payable and together with interest of ₹ 6,79,48,484, a total sum of ₹ 20,11,80,806/- has been found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,88,56,180 on 27.02.2014 as entry tax. By order contained in memo no. 391 dated 31.03.2015 issued under the signature of the Joint Commissioner Commercial Taxes, Patna, order of refund of tax by adjustment under the Bihar Value Added Tax Ordinance, 2005 was issued with respect to the petitioner. It was ordered that for the year 2010-11 a refund of ₹ 15,04,59,365/- was due under Rule 43/Rule 44 of the Bihar Value Added Tax Rules, 2005 and that the said refund was to be adjusted towards entry tax dues for the period 2014-15. It is the case of the petitioner that he utilized the said refund by taking adjustment against liability of entry tax for the months of April, May and June of 2015 and these facts were duly shown in Form ET-03 for the said months, which has been brought on record as Annexure 2 series to the application. During pendency of the application a supplementary affidavit has been filed on behalf of the petitioner bringing on record an assessment order dated 22.06.2019 (Annexure 12 to the application) issued under the signature of the Assessing Officer on completion of the assessment proceeding for the period 2014-15 (entry tax). From perusa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A counter affidavit and a supplementary counter affidavit has been filed on behalf of the Assistant Commissioner, State Taxes, Special Circle, Patna i.e. the respondent no. 2 herein. It has been submitted on behalf of the respondent no. 2 that the petitioner who was involved in the import of scheduled goods under the BTEG Act, 1993 have admitted the entry tax liability upon the import of such goods. They being engaged in business of such goods within the State of Bihar, have also accepted the VAT liability under the BVAT Act, 2005. In the annual return filed in Form ET 05 by the petitioner for the period from 01.04.2015 to 31.03.2016, the total amount of entry tax admitted as payable was ₹ 90,77,46,204.91. Further contention on behalf of the respondent no. 1 is that although the tax deposited is ₹ 77,45,13,882.00/- and is short by ₹ 13,32,32,322/-, amount of entry tax paid has wrongly been shown to be ₹ 92,49,72,305/-. Thus, a notice under section 39(2) (ii) of the BVAT Act, 2005 read with section 8 of the BTEG Act, 1993 was issued to the petitioner. The balance tax payable together with interest computed as per the provisions of section 24 (10) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 2016 and the due date would be 31.12.2017. The authority concerned had no jurisdiction of scrutiny on 12.01.2019 as has been done, as contained in Annexure-6 to the application and the same is wrong, illegal and without jurisdiction. As a consequence, the demand notice dated 28.01.2019 as contained in Annexure-7 to the application is also bad . Further contention on behalf of the petitioner is that section 39 deals with payment and recovery of tax. Section 39(2)(ii) provides for payment of tax by the dealer according to the return filed by the dealer where full payment of such amount has not been made. It has been contended that from perusal of Form ET-05 for the relevant period 2016-17 the amount of tax paid as per the dealer being more than amount payable, no order could have been passed under section 39(2) (ii), as impugned herein. Thus, as would be evident from Form ET-05 filed by the petitioner for the period from 01.04.2015 to 31.03.2016 which has been brought on record as Annexure-A to the counter affidavit on behalf of the respondent no. 2, from perusal of Part C thereof it would be evident that as against total amount of entry tax admitted by the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in Form A-(VIII) and in the said form a categorical statement has to be made as to the manner in which the refund is preferred and that if the refund is preferred by way of adjustment, the period against which the adjustment is prayed for, has to be mentioned. Learned counsel referring to Annexure-2 to the supplementary counter affidavit on behalf of the respondent no. 2 stated that from perusal of a copy of Form A (VIII) submitted by the petitioner it would transpire that with respect to the refund for the period 2010-11 the petitioner had made an application praying for refund by adjustment as against the entry tax for the period 2014-15. This application is dated 24.03.2015. It has been submitted that against the application dated 24.03.2015 in Form A (VIII), the refundable amount of ₹ 15,04,59,365/- has been credited to the petitioner s account on 31.03.2015 vide Challan no. 297 dated 31.03.2015. It has further been submitted that Form ET-05 for the period 2014-15 was filed on 13.01.2016 (Annexure-8 to the petitioner s reply to the counter affidavit of respondent no. 2). It has finally been submitted that the contention of the petitioner th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en passed on 12.01.2019 (Annexure-6) itself taking into consideration the amount of entry tax accepted by the petitioner in their returns and the amount of entry tax actually paid by the petitioner for the relevant period. As per order under section 39(2) of the BVAT Act, 2005 for the period 2015-16, while the petitioner has been found liable to pay further a sum of ₹ 13.32 crores (approx), in the assessment order dated 22.06.2019 for the period 2014-15. It has been found that a sum of ₹ 15.33 crores (approx) is refundable to the petitioner and it has further ordered that the same would be refunded by way of adjustment against the tax for the next year i.e. 2015-16. Thus, if the respondent authorities has passed the assessment order for the period 2014-15 prior to passing of order under section 39(2) for the period 2015-16, there would not have been any tax liability of the petitioner for the period 2015-16 which was calculated to the tune of ₹ 13.32 crores (approx) and which comes to ₹ 20.11 crores (approx) after adding of interest. Further submission on behalf of the respondent State is that so far as the order impugned dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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