TMI Blog2021 (2) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... n the State of Jharkhand within that period - The principles regarding maintainability of writ petition seeking refund in case the levy is unauthorized or without jurisdiction or is unconstitutional is well settled by the decisions of the Apex Court. In the case of HMM LTD. VERSUS ADMINISTRATOR, BANGALORE CITY CORPORATION [ 1989 (10) TMI 180 - SUPREME COURT] , the Apex Court has held that realization of tax or money without the authority of law is bad under Article 265 of the Constitution of India. The claim of refund has been denied on the plea that there is no provision under the JVAT Act since the petitioner is not a registered dealer and no assessment proceedings have been held. Under the Scheme of JVAT Act, assessment proceedings can be held against dealers, who have failed to get themselves registered. However, no assessment can be made under Sections 37 or 38 after expiry of 5 years from the end of the tax period, to which the assessment relates. On the face of the pleadings on record and the stand of the respondents brought through their counter affidavit, the rejection of claim for refund only on the ground that there is no provisions under the JVAT Act, 2005 for entert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also for a declaration that he is entitled to seek refund despite being unregistered under the provisions of JVAT Act. 4. Learned senior counsel for the petitioner, Mr. Gulati submits that petitioner is engaged in the business of selling goods through the portal, www.flipkart.com, to end customers, for their personal use. Petitioner is not registered under the Jharkhand Value Added Tax Act, 2005 (hereinafter referred to as the JVAT Act ). Petitioner has not been assessed to tax under the JVAT Act. No demand notice was raised against the petitioner. Petitioner has paid Central Sales Tax to the tune of ₹ 58,05,157/- in the State of Origin on goods being transported by it to Dhanbad Circle to be delivered to Customers. This amount of ₹ 61,74,899./- was collected on the very same goods. That there was a single transaction of sale on which CST had been paid in the State, where the movement of the goods commenced. During the relevant period, apart from the business of sale of goods using the online portal, the petitioner was also providing logistics services to the various sellers, who undertook sale through the said online portal. Since the amount was deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily does not have to be registered under the Act for seeking refund which has been collected in excess of the amounts due under the Act. If the petitioner was not liable to pay any tax, then the entire amount deposited by him would be in excess of the amount due, to which petitioner was not liable, but yet had deposited on a mistaken basis. He submits that Calcutta High Court in such circumstances has held that the entirety of the amount paid would be in excess of the amount due from him under the Act. If the construction urged on behalf of the respondent is accepted, it would lead to illogical consequences because in an event if a person had paid tax say of ₹ 10/- in excess he would be entitled to refund but if a man, who was not liable to pay any tax at all, has paid ₹ 1,000/- as tax he would not be entitled to any refund. Such a construction should not be advanced as it would be hit by Article 265 of the Constitution of India. Learned counsel for the petitioner submits that under the provisions of JVAT Act in particular Section 39, no assessment under Sections 37 or 38 can be made after expiry of 5 years from the end of the tax period, to which the assessment re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction without any demand of tax since the goods transported by the petitioner were already excisable to Central Sales Tax to the tune of ₹ 58,05,157/- which were paid in the State of Origin. No sale took place in the State of Jharkhand within that period. The principles regarding maintainability of writ petition seeking refund in case the levy is unauthorized or without jurisdiction or is unconstitutional is well settled by the decisions of the Apex Court. In the case of HMM Ltd. (supra), the Apex Court has held that realization of tax or money without the authority of law is bad under Article 265 of the Constitution of India. It has further been held in the case of Arvind Lifestyle Brands Ltd. Vs. Under Secretary Technology Development Board Ors., reported in 2019(368) ELT 387 (Kar.) relying upon the decision in the case of HMM Limited (Supra) that any amount paid by mistake or through ignorance of repeal Act deserves to be refunded as retention of such amount would be hit by Article 265 of the Constitution of India. In the case of the petitioner admittedly there has been no assessment of tax liability till date. The claim of refund has been denied on the plea that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
