1999 (2) TMI 650 - AT - VAT and Sales Tax

Tribunal Quashes Assessment Orders, Remands for Refund Eligibility, Emphasizes Detailed Examination

South India Corporation (P) Ltd. Versus Deputy Commercial Tax Officer and Another

South India Corporation (P) Ltd. Versus Deputy Commercial Tax Officer and Another - [2000] 119 STC 145 (TNTST) Issues Involved:1. Legality of the purchase tax imposed on construction materials.2. Timeliness and laches in filing the writ petitions for refund.3. Applicability of Article 265 of the Constitution of India.4. Principles of refund as per Supreme Court rulings.5. Examination of whether the tax burden was passed on to third parties.Detailed Analysis:1. Legality of the Purchase Tax Imposed on Construction Materials:The petitioner, engaged in construction work, paid purchase tax on materials like metals, sand, and bricks under the mistaken belief that these were taxable under Section 7-A(1) of the Tamil Nadu General Sales Tax Act. This belief was shared by the respondent. However, a ruling by the Madras High Court in State of Tamil Nadu v. East Coast Constructions and Industries [1986] 61 STC 337 clarified that such materials used in building construction do not attract purchase tax, as building construction cannot be equated to the 'manufacture of other goods.' This judgment became final, indicating the tax was collected under a mistake of law.2. Timeliness and Laches in Filing the Writ Petitions for Refund:The petitioner became aware of the High Court's decision only in May 1986 and subsequently sought a refund from the Deputy Commissioner, who rejected the request on June 19, 1986. The petitioner then filed writ petitions on April 22, 1988. The respondents argued that the delay constituted laches, making the refund claim invalid. However, the Tribunal noted that the delay must be evaluated based on whether it resulted in any third-party rights or public inconvenience. The Tribunal cited several precedents where delays were excused if the claims were legitimate and no third-party rights were affected.3. Applicability of Article 265 of the Constitution of India:The petitioner's counsel argued that under Article 265, which mandates that no tax shall be levied or collected except by the authority of law, the respondents had no jurisdiction to retain the amounts collected illegally. The Tribunal agreed, stating that taxes collected without legal authority must be refunded, aligning with the principles laid out in various Supreme Court judgments.4. Principles of Refund as per Supreme Court Rulings:The Tribunal referred to the Supreme Court's classification in Mafatlal Industries Ltd. v. Union of India [1998] 111 STC 467, which categorized refund claims into three types: unconstitutional provisions, misapplication of law, and decisions in third-party cases. The Tribunal emphasized that even without a statutory provision for refund, a writ petition under Article 226 could be filed to challenge illegal levies and claim refunds. The Tribunal also highlighted that the burden of proof lies on the assessee to show that they did not pass on the tax burden to third parties.5. Examination of Whether the Tax Burden Was Passed on to Third Parties:The Tribunal acknowledged that the petitioner's right to a refund hinges on whether the tax burden was passed on to third parties. The Supreme Court's guidelines in Mafatlal's case stress that if the tax liability was passed on, the assessee is not entitled to a refund. The Tribunal remanded the case to the assessing authority to investigate this aspect before granting a refund.Conclusion:The Tribunal quashed the impugned assessment orders and remanded the case back to the assessing authority to determine the refund eligibility, ensuring the petitioner had not passed on the tax burden to any third party. The Tribunal emphasized the need for a personal hearing and a thorough examination of the facts before deciding on the refund. The petitions were allowed, and the order was to be executed promptly by all concerned parties.