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TMI Blog2021 (2) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... ment years were determined as amounts paid is excess by way of TDS. The petitioner accordingly submitted refund applications to the respondent authorities, receipt of which, however were not acknowledged by the respondent authorities. Subsequently upon enquiry the petitioner company was informed that there was no record of any such applications filed/submitted by the petitioner company. The petitioner company therefore filed/submitted fresh refund applications. The same were however rejected on the ground that it was submitted beyond limit time prescribed under the AVAT Act 2003 and the Rules made thereunder. 3. For the assessment years 2006-07 to 2010-11, under Assam Value Added Tax Act, 2003 (hereinafter referred to as AVAT ACT, 2003), several amounts were paid by the petitioner Company by way of taxes. Subsequently, it was noticed that for several years there were excess amounts paid into the State Exchequer by way of TDS. The petitioner Company regularly filed its monthly returns showing its monthly turnover as well as annual returns prescribed under the AVAT ACT, 2003 before the concerned jurisdictional assessing authority, namely the respondent No.3 herein. In the annual ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner that the assessment for the aforesaid assessment years 2006-07 to 2010-11 were completed much earlier whereas the applications seeking refunds were filed only on 05.11.2015 which is beyond the prescribed time limit of 180 days from the date of assessment. The petitioner company was requested to submit proof of submission of the application for refund against the above mentioned periods within the prescribed time limit or otherwise submit reasons for late filing of the refund applications. 7. The petitioner responded to the letter dated 05.11.2015 by explaining the reason for the alleged late submission of the refund applications. The same, however, were allegedly not considered by the respondent No.3 vide order dated 09.12.2016 and the claims for refund were rejected. The rejection was communicated by Communication No. 3589-90 dated 17-12- 2016 by the respondent No. 3. Being aggrieved, the present writ petition has been filed assailing the rejection of the refund claim made by the petitioner and praying for setting aside of impugned order dated 09-12-2016 passed by the respondent no. 3 as well as communication no. 3589-90 dated 17-12-2016 issued by respondent no. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered with and set aside and quashed. 10. Learned Senior counsel for the petitioner submits that when there is no dispute that the petitioner company had made excess payments towards the VAT and the same is reflected in its Return filed and when the Department has also completed the assessments, then refusal to grant refund of amounts legitimately due to the petitioner company, will amount to withholding of revenue due to the petitioner by the Department on the Government which is not sanctioned by Law. The learned Senior counsel submits that in a democratic society governed by Rule of Law, every Government which claims to be inspired by ethical and moral values must do what fairness demands, regardless of legal technicalities. The Department/Government cannot be permitted to defeat a legitimate claim of the assessee for refund of excess VAT paid by resorting to technicalities. Fairness and Justice demands that such legitimate claim is duly entertained by the Department. 11. Regarding the plea of the bar of limitation raised by the respondent Department, the learned Senior counsel submits that the Apex Court has held that when public bodies under the colour of public laws, recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after adjusting the amount of tax or penalty, interest or sum forfeited or ail of them due from, and payable by the dealer on the date of passing of order for such refund. (2) Where the amount of input tax credit admissible to a registered dealer for a given period exceeds the tax payable by him for the period, he may, subject to such restrictions and conditions as may be prescribed, seek refund of the excess amount, by making an application in the prescribed form and manner, containing the prescribed particulars and accompanied with the prescribed documents to the Prescribed Authority, or adjust the same provisionally with his future liability to tax in the manner prescribed. Provided that the amount of tax or penalty, interest or sum forfeited or all of them due from, and payable by, the dealer on the date of such adjustment shall first be deducted from such refund before adjustment". "Rule 29. Refund.- (1)(a) The application for refund as referred to in subsection (1) of section 50 shall be made in Form-37 within one hundred and eighty days from the date of assessment or reassessment, as the case may be: Provided that an application for refund made after the said period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nduct of the person to whom the refund is payable; and (ii) the time during which any reasonable inquiry relating to the return or claim was initiated and completed and the time taken for adjustment by the refunding authority of any tax, interest and other amount due. (h) After the refund is sanctioned if the claimant desires to adjust the amount of refund due to him, the Prescribed Authority shall set off the amount to be refunded or any part thereof against the tax, if any, remaining payable by the claimant or against the future dues. (i) The Prescribed Authority shall enter in a register in Form-40 particulars of all the refunds allowed in pursuance of assessment orders, all applications for refunds and of the order passed thereon". 16. It will also be relevant here to extract the impugned order dated 09-12-2016 passed by the respondent No. 3. For ready reference the impugned order available at Page No.36 as Annexure-V is extracted below: "XXXXXXXXXX ORDER Dealer was asked to furnish reasons for late submission of refund application. Dealer has submitted that they had filed application within time for which they have failed to furnish any proof. In view of the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t held as under: "XXXXXXXXXX The appellant having been once found to be eligible for exemptions and refund of duty paid, denial of benefit of exemptions and refund on the ground of delay, in our considered opinion, will cause grave injustice which cannot be permitted. Even otherwise, it is well settled law that non-following of procedural requirement cannot deny the substantive benefit, otherwise available to the assessee. Also exemptions made with a beneficient object like growth of Industry in a Region have to be liberally construed and a narrow construction of the Notification which defeats the object cannot be accepted. XXXXXXXXXX" 20. It is seen that Section 50 of the Assam Value Added Tax, 2003 provides that, if it is found on assessment or reassessment that a dealer has paid tax, interest or penalty in excess of what is due from him, the Prescribed Authority shall, on a claim being made by the dealer in the prescribed manner and within the prescribed time refund to the dealer the amount of tax, penalty and interest paid in excess by him. 21. The Rule 29 of the Assam Value Added Tax Rules 2005 provides that a claim for refund as provided under Section 50(1) of the AVA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the impugned order, regarding any enquiry etc. made by the Departmental Officer to have arrived at a finding that the applications were not filed, which the petitioner on the contrary had claimed it had filed within the relevant time although no acknowledgement was received. That fact whether verified by the respondent authorities from the records before arriving at the conclusion as has been done by the impugned order, is not discernable from the impugned order. 23. This exercise of the respondent authorities although not reflected in the recital of the impugned order, the same is now sought to be supported by way of an affidavit filed on 03.09.2020 in respect of the impugned order which was passed on 09-12-2016. It is also stated in paragraph 4 of the affidavit filed by the Department before this court that the petitioner failed to submit any reasonable, logical and substantive reasons for not filing application within the prescribed time. Such explanation in a subsequent affidavit pursuant to the impugned order passed will amount to permitting the Department to expand the scope of an order passed by the Departmental Officer exercising quasi-judicial jurisdiction and w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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