TaxTMI 
TaxTMI 
2007 (7) TMI 581
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....petitioner is engaged in the business of mobile telecommunication and is a limited company. It is carrying on its business at Anand Banquet Hall, Delhi Road, Sonepat. The assessee-petitioner filed statutory returns for the assessment years 2000-01 and 2001-02. The assessment was finalised by the Assessing Authority, Sonepat, vide orders dated January 30, 2003 and February 26, 2003, respectively. The element of "activation charges" was included in the turnover by the assessing authority, which levied tax and interest creating additional demands of Rs. 46,48,324 and Rs. 49,29,593 in respect of both the assessment years under the Act. Aggrieved by those assessment orders, the assessee-petitioner filed two appeals, which were dismissed by the Joint Excise and Taxation Commissioner (Appeals), Rohtak, vide order dated April 30, 2004. On further appeal to the Haryana Tax Tribunal (for brevity, "the Tribunal"), the orders of assessment were set aside, vide order dated April 25, 2006 (P1). The Tribunal followed the judgment of the honourable Supreme Court in the case of Bharat Sanchar Nigam Ltd. v. Union of India [2006] 145 STC 91; [2006] 3 VST 95; [2006] 282 ITR 273; [2006] 6 RC 276 ; [200....
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....med that the Assessing Authority, Sonepat, passed orders dated June 21, 2006 (P-5 & P-6) for refund of the amount in accordance with the observations made by the Tribunal in its order dated April 25, 2006 (P 1). It has been pleaded that thereafter respondent No. 2 following the provisions of rule 36 of the Rules placed the matter relating to the refund of the assessee-petitioner before the Deputy Excise and Taxation Commissioner, Sonepat, who made the following observation: "Financial Year: 2000-2001 'Action under section 10 of the Central Sales Tax Act is pending as the dealer purchased goods against "C" forms and disposed of in free scheme. Assessing Authority to take action immediately.' Financial year: 2001-2002 'As per balance sheet the dealer purchased goods against "C" forms and disposed of in free scheme. Penal action under section 10 of the Central Sales Tax Act is pending. Assessing Authority to examine and take action'." It has, thus, been pleaded that refund could not be given to the assesseepetitioner within the stipulated period as penal action under section 10A of the 1956 Act was yet to be finalised. ....
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....nt of the Calcutta High Court in the case of State of West Bengal v.Satyesh Ch. Lahiry [1979] 44 STC 246 and the Allahabad High Court in the case of Modi Industries Limited v. Commissioner of Sales Tax, U.P.[1983] 54 STC 96 and argued that refund cannot be refused on the ground that rectification application was pending or review was filed against the order of refund. For the later proposition, learned counsel has placed reliance on another Division Bench judgment of this court in the case of Muni Roller Flour Mills Pvt.Ltd.v.State of Haryana [2007] 5 VST 620; [2006] 28 PHT 292 and argued that there was no proceedings pending in the present case warranting withholding of refund. Therefore, it has been submitted that in no case a refund could have been withheld and the assessee-petitioner is entitled to payment of interest. Mr.Jhingan has also submitted that the refunded amount in respect of assessment year 2000-01 is Rs. 30,58,324 as against Rs. 46,58,324 and the amount of Rs. 16 lacs deducted as penalty under section 10A of the 1956 Act shall be contested at an appropriate forum. Ms.Ritu Bahri, learned State counsel, has vehemently argued that no interest is payable to the asse....
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....f tax or penalty or interest paid by him in excess for the amount due from him under this Act, either by a refund voucher, or at the option of the dealer by adjustment of the amount so paid against the amount due from him in respect of any other period: Provided that the assessing authority or a person appointed to assist the Commissioner under sub-section (1) of section 3, as the case may be, shall first adjust the amount to be refunded towards the recovery of any amount due, on the date of adjustment from the dealer and shall then refund the balance, if any. (2) Where an amount required to be refunded by the assessing authority to any person by virtue of an order issued under this Act is not so refunded to him within the period as may be prescribed, the dealer shall be entitled to interest at such rates and on such terms and conditions as may be prescribed." "Rule 35. Refund (section 43).-(1)(a) While framing the assessment of a dealer, the assessing authority shall, after such scrutiny of its record and after making such enquiries as it considers necessary, determine the amount paid by him, in excess, if any, and thereafter direct the refund of such amount as may remain....
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....claimed by him; (iii) a copy of the Central sales tax return in form 1 for the said period; (iv) such other documents or evidence as the assessing authority may require for his satisfaction that the tax leviable on such goods under the Act has been paid and the goods in respect of which the refund is claimed were subsequently sold in the course of inter-State trade or commerce, and charged to tax and the tax levied under the Central Sales Tax Act, 1956, has been paid. (3) Where the dealer is unable to identify the goods purchased with the goods resold, it shall be presumed that the goods purchased have been resold, in the chronological order in which they were acquired. (emphasis(1) added) Rule 36. Determination of amount of refund (section 43).-When the assessing authority is satisfied after such scrutiny of accounts and such enquiries as it considers necessary that the claim for refund is admissible, he shall, subject to proviso to section 43 determine the amount of refund due if not already determined under sections 39, 40, 41 and 42 and record an order sanctioning the refund, if the amount to be refunded exceeds ten thousand rupees but does not exceed five lac rupee....
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....less the Commissioner, for reasons to be recorded in writing, condones the delay. A reference to sub-section (5) of section 25 of the Act reveals that the legislation has provided for mutuality and the same rate of interest payable by a dealer for delayed payment of tax, interest or penalty has also been provided for the benefit of the dealer in case there is a delay by the Revenue in making payment of the refund. Accordingly, it has been provided that for the first month of delay, the rate of interest would be 12 per cent per annum (one per cent per month) and thereafter 18 per cent per annum (one and a half per cent per month) till the actual payment. In the present case, once the Tribunal has directed payment of refund, vide order dated April 25, 2006, the only requirement on the part of the assessee-petitioner was to move an appropriate application before the Assessing Authority for the refund of the amount. Two applications were filed by the assessee-petitioner on May 15, 2006 (P2 and P3). The period of 90 days as provided by rule 35(1)(b) of the Rules came to an end on August 15, 2006. However, it is conceded position that the payment has been made in respect of the assess....