TaxTMI 
TaxTMI 
2021 (12) TMI 356
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.... 749 of 2020 2004-05 1,24,73,696/- 2. 766 of 2020 2005-06 6,21,78,915/- 3. 767 of 2020 2006-07 6,02,23,413/- 4. 768 of 2020 2007-08 3,96,92,735/- 3. Though the aforesaid refund claimed were granted to the petitioner vide orders dated 29.06.2020, by further communications dated 07.07.2020 and 11.08.2020 issued by the Deputy Commissioner, Commercial Tax, Sector - 3, Prayagraj, the said authority had adjusted the amount of refund quantified at Rs. 17,45,68,741/- for A.Ys. 2004-05 (beginning 14.10.2004) to 2007-08 (ending 31.12.2007), claimed by the petitioner under the provisions of U.P. Trade Tax Act, 1948 (hereinafter referred to as the 'Erstwhile Act') against the outstanding demand of interest due on delayed payments of entry tax Rs. 18,10,01,347/- for A.Ys. 2003-04 and 2009-10 under the U.P. Tax on Entry of Goods into Local Areas Act, 2007 (hereinafter referred to as the 'Entry Tax Act'). 4. The petitioner challenged the aforesaid adjustment of refund by means of Writ Tax No. 748 of 2020. It was heard and decided on 16.11.2021. That hearing proceeded on an admission made by the revenue that the claim for refund made....
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....e extent petitioner's entitlement for tax exemption for the period available under the original notification dated 27th February, 1998. Accordingly, a writ in the nature of mandamus is issued directing the opposite parties to provide tax exemption to the petitioner industry from the date of production for the period of entitlement under original notification dated 27th February, 1998." 7. On 16.04.2010, the petition filed by the present petitioner being Writ Petition (Misc. Bench) No. 6176 of 2004, M/s Birla Corporation Ltd. vs. State of U.P and others came to be decided by the order dated 16.04.2020 on the following terms:- "Keeping in view the fact that the controversy has been set at rest, present writ petitions too are decided finally in terms of the judgment and order dated 29.3.2010, passed in writ petition No. 5861(M/B) of 2010. No order as to costs." 8. The above judgments, were carried in appeal by the revenue, to the Supreme Court. Vide judgment dated 12.11.2019, in State of Uttar Pradesh and Another vs. Birla Corporation Ltd. (2019) SCC OnLine SC 1569, the Supreme Court dismissed the revenue's appeal with certain observations. ....
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....r the principle of unjust enrichment was found applicable nor any other ground was found existing to deprive the petitioner of the refund claimed. At the same time, the assessing authority found, no interest was payable to the petitioner on the delayed refund. Thereafter, on 07.07.2020, instead of paying out the refund, the assessment authority of the petitioner issued a further ex-parte communication to the petitioner informing adjustment of the entire amount of refund Rs. 17,45,68,741/- against the outstanding demand of dues of interest on Entry Tax Rs. 18,10,01,347/-, for the A.Ys. 2003-04 to 2009-10. 11. A similar communication giving full details of such adjustments made was issued to the petitioner on 11.08.2020. In such circumstances, the petitioner again wrote to its assessing authority on 31.08.2020 stating, no amount of tax was due against him either under the erstwhile Act or the VAT Act or the Central Sales Tax Act, 1956 (hereinafter referred to as the "Central Act"). It reiterated its demand for payment of refund due. In the present writ petition in paragraph 3, it has been specifically stated, there is no amount of tax outstanding or due against the petitione....
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....urt in Commissioner of Sales Tax, U.P. Vs. Hind Lamps, Ltd., JT 2008 (8) SC 590 are claimed to be wholly distinguishable as those decisions arose in the context of section 29 of the Erstwhile Act. They have no application to the present facts as refund has been granted under section 40 of the VAT Act. 8. In this regard, reference has been made to a decision of the Supreme Court in Suhas H. Pophale Vs Oriental Insurance Company Limited and Its Estate Officer, (2014) 4 SCC 657. Further, in support of his submission, learned Senior Counsel for the petitioner has relied on another decision of the Supreme Court in National Engineering Industries Ltd. Vs Commissioner of Central Excise Jaipur, (2005) 13 SCC 418 to submit - the refund claim became due on 16.04.2010 upon the earlier writ petition filed by the present petitioner (Misc. Bench No. 6176 of 2004), being allowed. On that date, the Erstwhile Act did not exist. The only statutory law in force was section 40 of the VAT Act. Therefore, only that provision would govern the claim for interest. Under section 40 of the VAT Act the claim for interest may arise upon an order giving rise to refund passed by a Court and it is not dependen....
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....reafter, the present batch of petitions were heard. Hearing could not conclude due to paucity of time. Hence these four petitions are listed today. In such circumstances, there exists an inconsistent duality in the stand adopted by the revenue. 11. In any case, the earlier writ petition being Writ Tax No.748 of 2020 was confined to the issue whether the liability of interest on entry tax could be adjusted against any other refund of trade tax found due to the petitioner. On the other hand, here the issue is to the entitlement of interest on the refund of trade tax that became due upon the earlier order of this Court dated 16.04.2010. We have allowed the revenue to advance submissions that are at variance with the submissions advanced by it in the earlier writ (already decided by us vide order dated 16.11.2021), more out of helplessness, and not out of choice. 12. Having thus heard learned counsel for the parties and having perused the record, in the first place, we may take note of the certain statutory provisions. Under the Erstwhile Act, the provision of refund existed in the shape of section 29 of that Act. A slightly different provision existed in the shape of section 40 ....
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....lue of goods manufactured out of such goods is inclusive of such tax and the State Government remits the tax liability on such purchases retrospectively, the dealer shall not be entitled to refund of tax paid on purchases of such goods unless he proves to the satisfaction of the Assessing Authority that he has not passed on the liability of such tax to any third party as a result of any sale or otherwise. Section 29-A - Procedure for disbursement of amount wrongly realised by dealer as tax (1) Where any amount is realised from any person by any dealer, purporting to do so by way of realisation of tax on the sale or purchase of any goods, in contravention of the provisions of sub-section (2) of Section 8-A, such dealer shall deposit the entire amount so realised in such manner and within such period, as may be prescribed. (2) Any amount deposited by any dealer under sub-section (1) shall, to the extent it is not due as tax, be held by the State Government in trust for the person from whom it was realised by the dealer, or for his legal representatives, and the deposit shall discharge such dealer of the liability in respect thereof to the extent of the deposit. (3) Where ....
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....the assessing authority shall in the manner prescribed, refund to the dealer an amount of tax, fee, or other dues paid in excess of the amount due from him under this Act. Provided that amount found to be refundable shall first be adjusted towards tax or any other amount outstanding against the dealer under this Act or under The Central Sales Tax Act 1956 or under the erstwhile Act and only the balance if any shall be refunded. Provided further that refund, of excess amount of input tax credit, shall, without prejudice to other conditions, be subject to conditions and restrictions of section 15. (2) Where amount found refundable in accordance with the provisions under sub-section (1), is not refunded within thirty days from the date of order of refund passed by the assessing authority or where order giving rise to refund is passed by any other authority or court, from the date of receipt of such order by the assessing authority by due process, the dealer shall be entitled to simple interest on such amount at the rate of twelve percent per annum from the date of such order passed by the assessing authority or from the date of receipt of the order giving rise to refund passe....
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....n 22 or the sale invoice referred to in subsection (3) of the said section, as may be applicable, in the prescribed manner, claims refund of the amount of tax realised from him, the Commissioner or the officer authorised by him in this behalf, shall refund such amount to such official, personnel, consular or agent of such mission, United Nations or body, as the case may be. (7) Refund, under any provisions of this Act, may be given by refund voucher or cheque: Provided that where a dealer submits e-tax return, refund of any amount found refundable to him may be allowed through e-cheque. Explanation- For the purposes of this Act, prescribed date shall be deemed to be the date of refund. (8) The amount refundable under the erstwhile Act may be adjusted against the amount of tax or penalty or any other dues under this Act." 40-A. Withholding of refund in certain cases (1) Notwithstanding anything to the contrary contained in any other provision of this Act or in any judgment, decree or order of any Court, Tribunal or other authority, where after giving reasonable opportunity of being heard to the dealer or the person concerned, the Commissioner is satisfied on the repor....
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....tion: For the purposes of this section refund includes the refund of input tax credit." 13. The Erstwhile Act was repealed by the VAT Act w.e.f. 01.01.2008. section 81 of the VAT Act reads as under :- "81. Repeal and saving . - (1) The Uttar Pradesh Trade Tax Act, 1948 (U.P. Act No. XV of 1948) (hereinafter in this section referred to as the repealed enactment) is hereby repealed. (2) Notwithstanding such repeal, - (a) any notification, rule, regulation, order or notice issued, or any appointment or declaration made, or confiscation made, or any penalty or fine imposed, any forfeiture, cancellation or any other thing done or any action taken under the repealed enactment, and in force immediately before such commencement shall, so far as it is not inconsistent with the provisions of this Act, be deemed to have been issued, made granted, done or taken under the corresponding provisions of this Act. (b) any right, privilege, obligation or liability acquired, accrued or incurred under the repealed Act, shall not be affected and (manufacturing units) enjoying facility of moratorium for payment of tax under section 8 (2-A) of the said Act shall be e....
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....r punishment as aforesaid; and any such remedy may be enforced and any such investigation or legal proceeding may be continued and concluded, and any such penalty, forfeiture or punishment imposed as if the repealing Act had not been passed. 15. Section 81(2)(d) of the VAT Act preserves any right, privilege, obligation or liability acquired, accrued, or incurred under the repealed Act. On the date of repeal of the Erstwhile Act, the statutory law on rebate claimed by the petitioner under Erstwhile Act did not exist, by virtue of the repeal made. The challenge raised by the petitioner to the notification dated 14.10.2004 issued by the State Government in exercise of its powers under section 5 of the Erstwhile Act was pending consideration in Misc. Bench No. 6176 of 2004. That writ petition came to be decided on 16.04.2010. 16. Since, on the date of repeal, the earlier rebate notification dated 27.02.1998 stood withdrawn and only a challenge thereto was pending before this Court (under Article 226 of the Constitution of India), it may never be said that any right or privilege as to rebate had been acquired or had accrued in favour of the petitioner as may have been pro....
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....od statutorily incorporated in section 11B of the Central Excise Act, 1944. Applying that principle, the refund claim was rejected. In that context, with respect to the refund claim made under the same enactment, the Supreme Court held- the law prevalent at the time of refund had to be applied. 21. The aforesaid ratio is wholly inapplicable to the present facts. Present is not a case of amendment of section 29 of the Erstwhile Act but of repeal and replacement of the Erstwhile Act itself by a completely new enactment namely - VAT Act. Section 40(1) of the VAT Act only provides for refund of any amount paid by an assessee "in excess of the amount due from him under this Act". Since the disputed amount of trade tax had not been paid by the present petitioner by virtue of any notification and/or provision or proceeding under the VAT Act and, in fact, that deposit was made and the dispute arising therefrom, pre-dated the enforcement of the VAT Act section 40(1) of the VAT Act has absolutely no application to the present facts. 22. Since section 40(1) of the VAT Act is found to be wholly inapplicable viz-a-viz the claim for refund of trade tax for the A.Ys. 2004-04 to 2007-08, the....