TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 379
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....at the Petition does not suffer from delay and laches, learned counsel for the petitioner submitted that as the order refusing refund was never served on the petitioner, this Petition does not suffer from delay and laches. It is further the submission of learned counsel that the petitioner is a dealer registered under the Maharashtra Value Added Tax Act, 2002 ('the said Act' for short) in the business of trading and manufacturing of textile fabrics. Their sale was exempted under the MVAT. Learned counsel submits that the materials purchased for the purpose of manufacturing fabrics constituting inputs are taxable, as such, the petitioner's assessment usually resulted in the claim of sizable refunds at each of the financial years. 3. Learned counsel relied upon the chart which is at Exhibit B and in the petition to demonstrate the refund granted to the petitioner over the years. It is submitted that in the MVAT return for the F.Y. 2009-2010 (relevant period for short), following regular practice and in consonance with the circulars issued by the Commissioner, the petitioner claimed consolidated refund for the entire year to the tune of Rs. 1268475/-. The Application in Form 501 was ....
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....he writ petition, annexures, affidavitin-reply and the rejoinder filed. 7. It is the contention of the petitioner that for the relevant period, no notice for assessment or the order rejecting refund is served. The respondents in the affidavitin-reply stated that respondent No.3 has rejected refund claim on September 20, 2012 for the first quarter by issuing online refund rejection order under Rule 60 read with Section 51 of the said Act which is served on the petitioner by way of pasting as the petitioner was not found at the place of business. The visit report by the Sales Tax Inspector is also placed on record. At this juncture, it is pertinent to mention that the petitioner's predecessors were carrying on the business in the name and style as 'Mudra Lifestyle Ltd.' prior to 2011. The original company was taken over by E-Land group of South Korea and the name of the erstwhile company was changed to 'E Land Apparel Ltd'. The new management is therefore pursuing the matter based on the records available. 8. Learned AGP has correctly placed reliance on Section 18 of the said Act which provides that any registered dealer liable to pay tax under this Act, who transfers by way of sal....
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....ved one refund rejection order from the office of Deputy Commissioner of Sales Tax for the period of April 1, 2009 to June 30, 2009 amounting to Rs. 41,42,109/vide refund rejection order dated September 20, 2012. It is stated that the company is unable to trace the documents and hence it is not clear as to how the refund application for the particular quarter was processed and rejected. Even this application for considering the claim of refund for the full year i.e. Financial Year 2009-2010 was made on October 14, 2015. 11. Thereafter, the application under Right to Information Act on April 20, 2018 is made. We find that by filing an application under the Right to Information Act, the petitioner's attempt is only to resurrect the cause of action. The right to seek the refund in the instant case crystalised on September 30, 2011 itself, viz. the date of transaction stated in form 501. The response to the RTI application of the respondents on October 9, 2018 that the refund application for the amount of Rs. 1,26,98,745/- was rejected by the department can hardly be a ground for the petitioner to resurrect the cause of action. The communication dated October 9, 2018 is merely a respo....
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....the application for refund. The petitioner woke up from its slumber on October 14, 2015. In our opinion this is not a case of unjust enrichment enuring to the benefit of the respondents. Though the right to claim refund is crystalised way back on September 30, 2011, the petitioner chose not to enforce their rights with diligence and promptitude. This is a case where by passage of time the petitioner has allowed the remedy of claiming refund to be lost. Mere making an application on October 14, 2015 and then trying to obtain information under the Right to Information Act since 2018 onwards will not revive a stale claim. The law is well settled that making of repeated representations does not have the effect of keeping the claim alive. The petitioner has referred to the application dated October 14, 2015 and the application made under Right to Information Act from 2018 onwards to explain the delay in filing the writ petition. However, the explanation, in our opinion, is unsatisfactory. These repeated representations do not give a fresh cause of action to the petitioner and mere making of representation cannot justify a belated approach. It cannot be said that petitioner was pursuing ....
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....ive remedy as barring the writ jurisdiction under Article 226 of the Constitution of India is only a rule of self-imposed limitation; it is essentially a rule of policy, convenience and discretion. The decision in State of H.P. and others (supra) has no application in the facts of the present case as the issue involved for our consideration is whether delay and laches is a factor to be considered for refusing to exercise our discretionary writ jurisdiction. 14. The right to seek the refund having been crystalised on September 30, 2011 and in any case as the order rejecting refund is passed on September 20, 2012, it was expected that the petitioner approaches this Court as early as possible and without undue delay. The petitioner slept over its rights. In this context, it is necessary to make a profitable reference to the decision of the Hon'ble Supreme Court in the case of The State of Madhya Pradesh and another vs. Bhailal Bhai and others. 1964 AIR 1006. Their Lordships held that the special remedy provided in Article 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It ha....