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TMI Blog2025 (2) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... atch of writ petitions wherein Mr. G. Rahul, the learned counsel appears for the respondent. 2. The batch of writ petitions so filed by the Assistant Commissioner of Taxes, Tinsukia as petitioner is intrinsically connected to the writ petition filed by the petitioner in WP(C) No.4240/2022, and as such, all the writ petitions are taken up for disposal together. 3. The facts which led to the filing of the writ petitions are narrated infra. The petitioner in WP(C) No.4240/2022 (hereinafter referred to as 'the petitioner firm') is a proprietorship firm having its principal place of business at Tinsukia, Assam is engaged in the business of bottling and trading in Indian Made Foreign Liquor (for short, 'IMFL') The said firm sales its goods both within the State of Assam and also to various other States in India. The petitioner firm is registered under the provisions of the Assam Excise Act, 1910; the Central Sales Tax Act, 1956 as well as the Assam Value Added Tax Act, 2003 (for short, 'the Act of 2003'). 4. The Assistant Commissioner of Taxes, Central VAT Audit Cell who is the respondent No.4 in WP(C) No.4240/2022 had assessed the petitioner firm under Section 36 of the Act of 2003 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and further assailing the show cause notice dated 18.11.2021, the petitioner firm approached this Court by filing the writ petition which has been registered and numbered as WP(C) No.4240/2022. 8. It is relevant to take note of that this Court vide an order dated 24.06.2022 issued notice and observed that the pendency of the writ petition shall not be a bar for the respondents to return the pre-deposits made by the petitioner while preferring the revision applications in terms with the orders dated 26.02.2020 passed by the Joint Commissioner of Taxes, Assam as per their entitlement, following the due procedure of law and if there is no impediment in releasing the same. 9. The record reveals that on 31.07.2024, when the matter was listed before this Court, it was informed that the Appeals have been filed before the learned Assam Board of Revenue against the order dated 26.02.2020. It was further submitted that as the learned Assam Board of Revenue did not have the quorum, the appeals have not been taken up for consideration. Under such circumstances, this Court made a query upon the learned Standing Counsel appearing on behalf of the Finance and Taxation Department of Assam as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed in respect to the Act of 2003 and Central Sales Tax Act, 1956. Accordingly, taking into account that the instant writ petition being WP(C) No. 4240/2022 was intrinsically connected with the batch of writ petitions challenging the revisional orders dated 26.02.2020, this Court vide an order dated 05.11.2024 had tagged all these writ petitions together. 12. A perusal of the contents of the batch of writ petitions so filed by the Assistant Commissioner of Taxes, Tinsukia, who is the Assessing Officer challenging the revisional orders dated 26.02.2020 would show that the challenge is made primarily on the non-compliance of a Circular bearing No.15/2010 issued by the Commissioner of Taxes dated 23.08.2010. 13. Mr. B. Choudhury, the learned Standing Counsel appearing on behalf of the Finance and Taxation Department of the Government of Assam submitted that on account of an apprehension that many dealers may show local sale at inter-State sale thereby evading sales tax at a rate of 27% over and above the excise duty payable whereby the State would be losing substantial amount of revenue, a circular was issued being Circular No.15/2010 dated 23.08.2010 whereby it was impressed upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner firm, and as such, interest at the rate of 15% should at least be awarded as a compensatory measure for the illegally withholding to the pre-deposit amounts. In that regard, the learned counsel has referred to the judgment of the Supreme Court in the case of Union of India vs. Suvidhe Ltd. reported in (2016) 11 SCC 808 as well as the judgment in the case of Commissioner of Customs (Import), Rigad vs. Finacord Chemicals (P) Limited & Others, reported in (2015)15 SCC 4697. 15. Per contra, the learned Standing Counsel for the Finance and Taxation Department submitted that the State has challenged the revisional order, and as such, as the matter is pending before this Court for which the question of payment of any interest does not arise. 16. This Court has duly heard the learned counsels appearing on behalf of the parties and perused the materials on records. For deciding the entitlement of the petitioner firm, this Court first would like to deal with the batch of writ petitions filed by the Assessing Officer, i.e. the Assistant Commissioner of Taxes, Tinsukia. The batch of writ petitions filed by the Assistant Commissioner of Taxes, Tinsukia challenges the common revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... despatch, proof of payment of freight to the transporter, proof of movement through concerned check posts, relevant excise documents of importing State and Assam be also insisted upon. It is further mentioned in the said Circular that in cases where VAT audit has been completed without taking into consideration the aforementioned checks, the Deputy Commissioner of Taxes of the Zones may take a suo-moto revision. Therefore, from a perusal of the said Circular, it is seen that the same is in respect to conducting VAT audit by the concerned Assessing Officers in terms of Section 36 of the Act of 2003. 18. For understanding the said aspect of the matter, this Court had put a specific query upon Mr. B Choudhury, the learned Standing Counsel of the Finance and Taxation Department as to whether the prescribed authority as mentioned in Section 36 of the Act of 2003 would be the same authority who would be exercising the powers under Section 82 of the Act of 2003. The learned Standing Counsel with all fairness submitted that a prescribed authority in terms with Section 36 of the Act of 2003 would be the authority who would carry out the audit assessment proceedings in terms with the Act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arise. 21. Accordingly, this Court therefore finds no merits in the instant batch of writ petitions so filed by the Assistant Commissioner of Taxes, Tinsukia challenging the impugned orders dated 26.02.2020 passed in respect to the Act of 2003 and Central Sales Tax Act, 1956 for which the same stands dismissed. 22. In the backdrop of the above decision rendered, the question arises as to whether the petitioner firm is entitled to the relief so sought for in WP(C) No. 4240/2022. This Court has duly taken note of that the deposits so made by the petitioner firm for admission of the revision petitions are nothing but pre-deposit for availing the right of revision. Under such circumstances, when by the order dated 26.02.2020, the Revisional Authority had allowed those revision petitions, the petitioner is entitled to the refund of the said amounts to which the petitioner had deposited as a pre-deposit in view of the well settled principles that a pre-deposit cannot be equated to payment of duty. Be that as it may, this Court cannot also be unmindful of the fact that the orders dated 26.02.2020 had dealt with the pre-deposit amount. It was submitted by the learned counsel for the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tax liability raised under the CST Act, 1956. The amount of excess deposited VAT in comparison to due taxes will be first adjusted against the amounts of tax become due under the CST Act, 1956 and the balance will be refunded to the dealer as per the provisions of law. The said adjustments for the purpose of calculation of interest will be made on the date of payment by the petitioner. I hereby set aside the impugned assessment orders for the periods 2005-2006, 2006-2007, 2007-2008 and 2008-2009-passed by the Assistant Commissioner of Taxes, VAT Audit Cell, Guwahati under the AVAT Act, 2003 and direct the jurisdictional assessing officer to reframe fresh assessment orders within 30 days of receiving the order in the light of the observations made here in above. Inform all concerned." 24. From the operative portion of the orders dated 26.02.2020 as quoted above, it would transpire that the Revisional Authority had directed that fresh assessment orders were to be passed taking into consideration the various details stated therein and thereafter to refund the balance amounts after making necessary adjustments. It was further directed that the said fresh assessment orders wer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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