TMI Blog2021 (2) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... es the manner in which the Form is to be filled and submitted seeking claim of refund. Provisio to Rule 29(1)(a) of the AVAT Rules gives a latitude to the Prescribed Authority to entertain an application seeking refund submitted even after the prescribed period of 180 (one hundred and eighty days) from the date of assessment or reassessment as the case may be. The Prescribed Authority may consider the refund claim if it is satisfied that the dealer had sufficient cause for not making an application within the said period. What will be sufficient cause has not been described in the statute. The Prescribed Authority is given the liberty to entertain such claims that may be filed even after the expiry of prescribed period of 180 (one hundred and eighty days) from the date of assessment or reassessment on sufficient causes being shown by the dealer. Accordingly, it is implied under the provisions of Section 50 of the AVAT Act 2003 read with Rule 29(1)(a) AVAT Rules 2005 that if cause(s) shown by a dealer are not considered to be sufficient then the Prescribed Authority must reflect and disclose the reasons therefor in the order passed by the Prescribed Authority rejecting any claim for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l assessing authority, namely the respondent No.3 herein. In the annual returns filed, the petitioner company had shown the amount of taxes paid in excess by deposits made through TDS for each assessment year. 4. In respect of the relevant assessment years, the amount of taxes due under the Act and the excess amount paid by way of TDS as stated by the petitioner in paragraph 3 of the writ petition are extracted here under:- 3. That for the Financial years 2007-08 to 2010-11, the petitioner Company has filed its monthly returns showing its monthly turnover as well as the annual returns prescribed under the Assam VAT ACT, 2003 before the jurisdictional assessing authority i.e. the respondent No.3 herein. In the said annual returns file, besides payment of taxes due under the Act, the petitioner company has further shown certain amount of tax paid in excess by way of TDS by the selling dealer for each assessment year. The following are the figures of payment of tax paid by the Petitioner and the amount paid in excess by way of TDS for each assessment year. Assessment year Payment of tax due under the Act Excess amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, 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. 8. The Department contested the case by their affidavit filed on 03.09.2020 supporting the rejection order. The respondents in their affidavit contended that the copy of the refund application stated to be submitted by the petitioner is not available in the official record of the Department nor is there any proof that the application was filed before the concerned unit office i.e. respondent no. 3. The respondent department further contended that the assessments for the period mentioned were completed way back in 2012 and their time limit of 180 days for submission of the refund application begins from the date of receipt of the Demand Notice against the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 public moneys, later discovered to be erroneous levies, there is no law of limitation especially for public bodies on the virtue of returning what was wrongly recovered to whom it belongs. 12. Learned counsel for the petitioner refers to the following judgments of the Apex Court in support of his contentions:- (i) (1978) 4 SCC 271 Hindustan Sugar Mills vs State of Rajasthan and Others. (ii) (19801) 2 SCC 437, M/S Shiv Shankar Dal Mills vs. State of Haryana. (iii) (1976) 38 SCC 99, Suresh Chnadra Bose vs. State of West Bengal. (iv) C. Ex. Appeal No.8/2006, M. K. Jokai Agri Plantation P. Ltd. Vs. Commissioner of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sionally 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 may be admitted by the Prescribed Authority, if he is satisfied that the dealer had sufficient cause for not making the application within the said period. (b) An application for refund shall be signed and verified as in the case of application for registration in case of a registered dealer. (c) The Prescribed Authority may reject, any claim for refund if the claim filed appears to involve any mistake apparent on the record or appears to be incorrect or incomplete, based on any information available on the record, after giving the dealer the opportunity to show cause in writing against s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall 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 above submission I have no alternative but to reject the application to the dealer for under delay in filing the refund application. Inform dealer accordingly. Sd/ Illegible Act, Unit-A 17. In view of the facts narrated above as pleaded by the contesting parties, let us examine the judgments of the Apex Court as well as by this Court relied upon by the learned Senior counsel. In the case of Hindustan Sugar Mill vs Sate of Rajasthan (Supra), the Apex Court has culled out the ratio that even if there is no legal liability of the Central G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 AVAT Act, 2003 shall be made in Form 37 within 180 (one hundred and eighty days) from the date of assessment or reassessment. The said Rule prescribes the manner in which the Form is to be filled and submitted seeking claim of refund. Provisio to Rule 29(1)(a) of the AVAT Rules gives a latitude to the Prescribed Authority to entertain an application seeking refund submitted even after the prescribed period of 180 (one hundred and eighty days) from the date of assessment or reassessment as the case may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent 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 which is not permissible under the statute. It has long been held that orders passed by administrative or quasi judicial authorities are required to stand or fall on its own. Subsequent explanations by way of affidavit(s) cannot be permitted in order to improve an order already passed by the Departmental Officer. The principle enunciated in the Judgment of the Apex Court in the case of Mohinder Singh Gill, reported in (1978) 1 SCC 405 is still a good law. Relevant paragraph of the Judgment is extrac ..... 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