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TMI Blog2023 (5) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... ree Hundred Fifteen and Fifty One Paisa Only) to be the amount refundable to the petitioner. The assessing officer namely, the respondent No 4, completed the assessment and vide the assessment order dated 06.07.2016, a sum of Rs. 75,59,265/- (Seventy Five Lakh Fifty Nine Thousand Two Hundred Sixty Five Only) was determined as the amount refundable to the petitioner. The said amount became refundable after adjustment of input tax credit and TDS against the output tax liability of the petitioner. It is the submission on behalf of the learned Senior counsel for the petitioner that upon receipt of the order of assessment, necessary steps were taken for filing of the refund application for refund of the excess tax as determined in terms of the order of assessment. A refund application was duly prepared and the same was submitted in the office of respondent No. 4. However, inspite of the application for refund having been submitted, no refund was received by the petitioner. Upon enquiries made from the office of the respondents it was informed that no refund application was available in their records. The petitioner being surprised by such a response and having no other alternative, file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enior counsel for the petitioner has strenuously urged that once an assessment order is passed by the authorities concerned and any amount is refundable to the petitioner, they are entitled under the law to make application for release of their refund as quantified by the Department. The learned Senior counsel for the petitioner submits that the Superintendent of Taxes dismissed the application for refund without considering the grounds explaining the delay that had occurred in filing the refund application The revisional authority namely, the Additional Commissioner of Taxes, vide impugned order dated 25.02.2021 further rejected the revision application by upholding the order of the superintendent of Taxes saying that there is no substantive evidence for the delay in filing the refund application. The learned Senior counsel for the petitioner submits that although a time limit is prescribed under the Act and the Rules, but power has been granted to the respondent authorities to condone such a delay upon sufficient explanation being furnished by the assessee. 6. The learned Senior counsel for the petitioner submits that this Court in a similar matter had interfered with such order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly submitted that the impugned orders dated 29.08.2019 and 25.02.2021 should be interfered with, set aside and the respondent authorities be directed to forthwith refund the amount of Rs 75,59,265/- held to be refundable vide the assessment order dated 06.07.2016 passed by the respondent No. 4, namely Superintendent of Taxes, Guwahati, Unit A. 8. Per contra, Mr. B Gogoi, learned Standing Counsel, Finance (Taxation) disputes the submissions made by the learned Senior counsel for the petitioner. It is submitted by Mr. Gogoi that although the amount has been held to be refundable by assessment order dated 06.07.2016, there is a statutory procedure by which the said refund are required to be released to the concerned assessee like the petitioner. Referring Section 50 read with Rule 29 of the Assam VAT Rules, 2005, it is submitted that refund application has to be submitted in the proper format within the time period prescribed, the same not having been done. There is no infirmity in the orders passed by the respondent No. 4 rejecting the application for refund as well as the order passed by the revisional authority. The learned Standing Counsel referring to the affidavit filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) * * * 11. It is seen that under the provisions of the Act and the Rules, there is a procedure prescribed and time frame laid down. The assessing officer before whom the application was filed dismissed/rejected the application vide impugned order dated 29.08.2019 the same order is also extracted below: "GOVT OF ASSAM OFFICE OF THE ASSISTANT COMMISSIONER OF TAXES:: Guwahati Unit-A:: No. 1693 Date. 29th August, 2019 To, N/S Itas G Pharma M.L.N. Road Panbazar, Ghy-1 Sub:- Refund Application. Ref: - Your refund application for the period 2011-12 & 2012-13 dated 24/07/2019. With reference to the above, I would like to inform you that as per provisions of Section 50 of the Assam Value Added Tax Act, 03, read with rule 29 of the Assam Value Added Rules, 05, the application for refund shall have to be made within 180 days from the date of assessment or re-assessment as the case may be. However, it is found that you have failed to do so and as such the case is time barred. Hence y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in filing any application for refund did not consider such grounds as the same is not discernable from the impugned order dated 29.08.2019 passed by the respondent No. 4. Coming to the Judgments referred by the learned Senior counsel for the petitioner, it is seen that in C.Ex. Appeal No. 8/2016 a Division Bench of this Court had categorically held that refunds due to the assessee cannot be denied or rejected on the ground of limitation. The Apex Court in M/S Shiv Shankar Dal Mills (Supra) has also laid down the law succinctly that any amount which is payable back is refund cannot be restrained by the respondent authority on the ground of limitation. Apex Court held that limitation under such cases are not applicable. A similar issue was earlier dealt with by this Court had vide Judgment and Order dated 20.01.2021 passed in W.P(C) No. 6314/2017 and under similar circumstances directed the respondent authority to reconsider the order rejecting the prayer for refund on the ground of limitation. 16. The apex Court in N Balakrishnan Vs M. Krishnamurthy, reported in (1998) 7 SCC 123 had considered the words "sufficient cause". The Apex court held that the primary function of the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvance substantial justice. 18. Upon consideration of the facts and circumstances of the case and also the Judgments as discussed above, it is seen that the impugned order dated 29.08.2019 passed by the respondent No. 4 merely rejected the refund application without consideration of the grounds which were urged by the respondent. The Revisional authority on the other hand considered the grounds and held the same to be not applicable or not sufficient and accordingly rejected the revision petition. 19. As discussed above, this Court is of the view that as per the statute it is the assessing authority namely the Superintendent of Taxes, Guwahati, Unit-A, respondent No. 4, who is at the first instance required to consider the grounds furnished by the assessee and render its finding as to whether the same are sufficient explanations for the delay that had occurred. The said authority must also keep in mind that the refund which the petitioner has sought for has already been determined by an adjudicatory process by way of assessment order dated 06.07.2016 passed by the Superintendent of Taxes. The Department does not deny that refund is payable to the assessee. In view of the law laid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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