TMI Blog2023 (2) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... ANA AND OTHERS [ 2009 (5) TMI 869 - PUNJAB AND HARYANA HIGH COURT] had precisely dealt with the question of law i.e. whether the higher authorities in the hierarchy of Sales Tax Department, Haryana in the garb of exercising power of granting sanction under Rule 36 of Haryana General Sales Tax Rules to the refund orders passed by the Assessing Officer, could set aside such order of assessment? View taken was that irrespective of merits of the case the refund has to follow order of the Assessing Authority and in proceedings for determining refund, only question was of quantification of refund. The impugned order passed by the Haryana Tax Tribunal dated 01.07.2005 (Annexure A-7) cannot sustain. The appellant-company consequently would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reflecting turn over of Rs.10,36,98,420/-. Out of such total turn over an amount of Rs. 7,71,16,529/- was depicted as rental income on account of machinery and equipments etc. given to M/s DLF Universal Ltd. On the aforesaid amount of rental, a tax of Rs. 52,37,790/- was deposited along with the returns treating the same to be deemed sale being transfer of property in goods. At the stage of assessing of return by the Assessing Authority for the year 1998-99, the appellant-company took a stand that no tax is payable by it under the Haryana Act as the situs of sale would be outside Haryana i.e. at Delhi where the agreement had been executed. Appellant-company at that stage had placed reliance upon the judgment of the Apex Court in M/s 20th C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi High Court order dated 8th August 2000. The merger of the two companies was as per the scheme of amalgamation effective from 1st April 1999. Shri Vipin Jindal has pleaded that both lessor and lessee companies have become one legal entity. Therefore, the claim of refund cannot be questioned on this ground. However the claim of refund has rightly been made by M/s DLF Universal Ltd. which had actually borne the burden of tax. At the same time he has pointed out the decision of the Hon'ble Supreme Court is not applicable in this case because the decision was given in the light of the provisions/scheme of the Central Excise Act whereas the scheme of the HGST Act clearly provides for the refund of tax and the scheme of the HGST Act is di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd declined the refund to the appellant. The appellant-company again approached the Haryana Tax Tribunal and which has led to the passing of the impugned order dated 01.07.2005 (Annexure A-7) taking a view that the Excise and Taxation Commissioner, Haryana was justified in refusing to accord approval to the refunds allowed in favour of the appellant-company by the Assessing Authority on the principle of unjust enrichment. We have heard counsel for the parties and have perused the pleadings on record. We find that the issue that arises for consideration in the present appeal is as to whether the Commissioner had jurisdiction under Rule 36 of the Haryana General Sales Tax Rules read with Section 43 of the Haryana General Sales Tax Act t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verted that the judgment of the Division Bench of this Court in Raghbar Dass Human Chand (supra) stands affirmed by the Hon'ble Supreme Court as the SLP preferred by the State of Haryana was dismissed. We may also refer to a Division Bench judgment of this Court in Jai Bharat Gum and Chemicals Ltd. vs. State of Haryana and others (2011) 38 VST 142 (P H) where the same view was reiterated following the earlier Division Bench judgment in Raghbar Dass Hukam Chand (supra). In view of the above and following the dictum laid down in Raghbar Dass Hukam Chand (Supra) we find that the impugned order passed by the Haryana Tax Tribunal dated 01.07.2005 (Annexure A-7) cannot sustain. The appellant-company consequently would be en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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