TMI Blog2024 (1) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... to the government under its delegated power. Since the Rule bars the claim of the Corporation, the same can t be within the realm of procedure. It was also held that since such a provision affects substantive rights, it must be dealt with the legislature itself and cannot be inferred from the rule making power unless provided for expressly. In the present case as well, the right to refund gets extinguished by the time limit provided in the JVAT Rules. This certainly affects the substantive and statutory right of the petitioner to get refund to which it is guaranteed under Section 52 of the JVAT Act. Thus, we hold that the refund application of the petitioner could not have been rejected on the ground of limitation since Rule 19(2)(a) is de hors the provision of Section 52 of the JVAT Act. From scrutiny of Section 55 of the JVAT Act it would make it evident that interest would be levied for the period commencing 90 days after the application for refund. Thus, the legislature has intended that Refund Application should be decided within a period of 90 days. In the present case, the same has been given a complete go by - the action of the Respondents is unjust and arbitrary whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that proceedings in respect of the refund was ongoing at the time of issuance of these correspondences. On 20.02.2020, petitioner was asked to file an online refund application which it duly did. On 31.05.2022, the petitioner received an e-mail indicating that its refund application has been rejected. Thereafter, petitioner applied for the entire order sheet of the Refund proceedings, which was supplied to the petitioner indicating therein that the proceedings has been recorded only from 04.01.2021 onwards. Literally, there was no mention of any proceedings prior to this date even though the refund application was filed nearly seven years back. On 28.05.2022, the JC (Admin) passed an order rejecting the Refund Application of the petitioner on the ground that the refund application had been filed beyond the period of limitation as provided in Rule 19(2)(a) of the JVAT Rules and certain tax liabilities were also outstanding for the year 2016-17 and 2017-18. Finally, on 30.05.2022 JC (Admin) wrote to the DCCT Jamshedpur Circle, Jamshedpur, informing him of his decision. Thereafter, on 23.06.2022 VAT CST dues for the period 2016-17 and CST dues for the period 2017-18 had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral in nature with regard to the manner and procedure of filing of refund applications. However, rule 19(2)(a) of the JVAT Rules states that the refund application must be filed within 90 days from receipt of the excess demand notice. He contended that when the legislature intends to delegate to the State Govt. the power to impose a time limit by way of rules; it has expressly done so in the JVAT Act. In this regard, he has referred to Sections 35(3)(b), 36(1) and 73(1) of the JVAT Act. By referring the aforesaid provisions, learned senior counsel submits that when the legislature proposes to delegate to the State Govt. the power to impose a time limit by way of rules; it has expressly done so in the aforesaid provisions of JVAT Act; however, when the legislature has consciously not used such a language under Section 52; the Government could not have, by way of Rules, prescribed a period of limitation for filing of a refund application and thus the refund application of the petitioner could not have been rejected on the ground of limitation since Rule 19(2)(a) is de hors the provision of Section 52 of the JVAT Act. II. The second limb of argument of the petitioner s counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld therefore, be a myth to state that the Regulations made under Section 23 of the Act have constitutional and legal status, even unmindful of the fact that any one or more of them are found to be not consistent with specific provisions of the Act itself. Thus, the Regulations in question, which AICTE could not have made so as to bind universities/UGC within the confines of the powers conferred upon it, cannot be enforced against or blind a university in the matter of any necessity to seek prior approval to commence a new department or course and programme in technical education in any university or any of its departments and constituent institutions. III Learned counsel further contended that so far as question of outstanding dues are concerned; the Act does not envisage denial of Refund Application on the ground of existing dues, inasmuch as, Rule 19(5) of the JVAT Rules only deals with a situation where there exist outstanding dues to be paid at the time of filing of refund application. Else, it would enable the respondents to keep refund application pending for long period of time and then deny refund on the ground that dues have arisen subsequently. Even otherwis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 02.09.2014, the petitioner made an application for refund after much delay and beyond the period of 90 days as prescribed under the rules mentioned above. The petitioner also did not make any application for condoning the delay despite there being a provision as well as occasion for the same. He further submitted that after receipt of the refund application of the petitioner necessary steps were taken to verify the validity of the claim of the petitioner, however upon finding that the claim of the petitioner was made belatedly; without any accompanying application for condoning the delay, in addition to the fact that certain dues were also outstanding against the petitioner, after giving notice, the refund application of the petitioner was rejected vide order dated 28.05.2022 by the Joint Commissioner (Admin.), Jamshedpur Division. Summarizing his argument, learned counsel for the State contended that in both the aforesaid writ applications; on the one hand, there was outstanding dues and on the other hand, it was time barred claim, as such rejection has been made as per Rule 19(5) of JVAT Rules. 8. Having heard learned counsel for the parties and after going through the av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onths after the claim has become due or he is unable to satisfy the Insurance Court that there was a reasonable excuse for him in not doing so, his right to receive payment of any benefit conferred by the Act is lost. Such a provision affects substantive rights and must therefore be dealt with by the Legislature itself and is not to be inferred from the rule-making power conferred by regulating the procedure unless that is specifically provided for. It was pointed out that in the Constitution also where the Supreme Court was authorized with the approval of the President to make rules for regulating generally the practice and procedure of the Court, a specific power was given to it by Article 145(1)(b) to prescribe limitation for entertaining appeals before it. It is therefore apparent that the Legislature does not part with the power to prescribe limitation which it jealously retains to itself unless it intends to do so in clear and unambiguous terms or by necessary intendment. Thus, it has been inter alia held that where the legislature intends to provide the period of limitation it specifically provides for the same in the main Act and does not leave it to the government un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f limitation since Rule 19(2)(a) is de hors the provision of Section 52 of the JVAT Act. 11. Now, so far as question of outstanding dues is concerned; it transpires that the Act does not envisage denial of Refund Application on the ground of existing dues. Rule 19(5) of the JVAT Rules only deals with a situation where there exist outstanding dues to be paid at the time of filing of refund application. Otherwise, it would allow the respondents to retain refund application pending for long period of time and then deny refund on the ground that dues have arisen subsequently; which is not and cannot be the intent of the legislature. Reliance in this regard is placed on the judgment of Hon ble Supreme Court in Global Energy Ltd. v. Central Electricity Regulatory Commission, (2009) 15 SCC 570 wherein it was held that- 25. It is now a well-settled principle of law that the rule-making power for carrying out the purpose of the Act is a general delegation. Such a general delegation may not be held to be laying down any guidelines. Thus, by reason of such provision alone, the regulation-making power cannot be exercised so as to bring into existence substantive rights or obligat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lities. We hope and trust that the Central Government will not seek to defeat the legitimate claim of the assessee for reimbursement of Sales Tax on the amount of freight by adopting a legalistic attitude but will do what fairness and justice demand. After all, the motto of every civilized State must be : Let right be done. 14. Having regard to the discussions made here in above, the impugned order in the respective writ applications i.e., the order dated 28.05.2022 (Annexure-9) in W.P.(T) No. 3944 of 2022 for the Assessment Year 2009-10, whereby the Tax authority has rejected the refund of the petitioner to the tune of Rs. 56, 86, 616/- and also the order dated 28.5.2022 (Annexure 6) in W.P.(T) No. 3911 of 2022 for the Assessment Year 2012-13, whereby refund application of the petitioner to the tune of Rs. 19,09,596/- has been rejected, is hereby, quashed and set-aside. The Respondents are hereby directed to calculate the amount of refund including interest for both the periods involved in the aforesaid writ applications strictly in accordance with law and pay the same to the petitioner forthwith. It goes without saying that the entire exercise shall be completed within a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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