TaxTMI 
TaxTMI 
2022 (4) TMI 1298
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.... of both the divisions by orders dated 01.08.2017 and 23.01.2018 respectively (Annexure - 2 in both the Writ Petitions and impugned herein), inter alia on the ground that there exists no provision under the Jharkhand Value Added Tax Act, 2006 ("JVAT Act") for refund to non-registered dealers and that the Petitioner has itself paid the amounts as admitted tax. The learned Commercial Taxes Tribunal in its orders dated 30.8.2019 (Annexure - 1 in both the Writ Petitions) has observed that a revision petition against the order of JCCT (Admin.) is not maintainable. However, it has also observed that no returns for the assessment year in question have been brought on record by the Petitioner. 3. Petitioner being aggrieved by the orders at Annexures 1 and 2, has approached this Court for quashing of the orders and also for a declaration that the Petitioner is entitled to seek refund despite being unregistered under the provisions of the JVAT Act. 4. Learned counsel for the Petitioner Mr. Kishore Kunal submits that the present cases are identical to the case of the same petitioner i.e. W.P (T) No. 2429 of 2018 relating to Dhanbad Division which was decided by this Court in its favour by o....
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....chment does not arise. He has relied on the following judgments in support of the proposition that amounts collected without authority of law are liable to be refunded - i. (1989) 4 SCC 640, paras-12 & 13]: HMM Ltd. Vs. Administrator, Bangalore City ii. (1986) 3 SCC 50]: Commissioner of Sales Tax, U.P. Vs. M/s. Auriaya Chamber of Commerce, Allahabad iii. [2008 (221) ELT 336 (Del.), paras-13 & 16]: Hind Agro Industries Ltd. Vs. Commissioner of Customs iv. [2019 (368) ELT 387 (Kar.)]: Arvind Lifestyle Brands Ltd. Vs. Under Secretary, Technology Development Board & Ors. Learned counsel for the petitioner has further placed reliance upon the case of Suresh Chandra Bose Vs. State of W.B [AIR 1976 Cal 110, paragraph-6] in support of the proposition that under Section 52 of JVAT Act, the refund can be filed by any person who is covered within the definition of "Dealer" and the person necessarily does not have to be registered under the Act for seeking refund which has been collected in excess of the amounts due under the Act. 5. Learned Counsel for the Petitioner further submits that in a similar manner, the refund application filed by the Petitioner towards amounts collected by....
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....ried to the State of Jharkhand with the help of Form JVAT 503. Secondly, it has been urged that the liability to pay tax can be ascertained either by the State or by the petitioner himself / itself. It is not necessary on the part of the State to proceed against each and every tax-payer for registration, filing of returns and assessment. It is the duty of the tax-payer to ascertain his liability and approach the concerned department to get him registered under the provisions of the Act. In the instant case, it was within the knowledge of the petitioner that he is liable to pay tax. The conduct of the petitioner also shows that it had paid the tax against each and every consignment transported with the help of Form JVAT 503 on the basis of self-assessment. Merely because of non-registration and non-assessment, he /it cannot claim that his / its liability to pay tax is nil. In W.P.(T) No. 5139 of 2021, the Respondent relies on Annexure-A to the counter affidavit to state that the Petitioner had expressly authorized an employee for payment of tax. In W.P.(T) No. 5188 of 2021, the Respondent has stated that the fact that the Petitioner had paid the amount of penalty and tax in pursuanc....
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....uced herein below: 7. We have considered the submission of learned counsel for the parties and taken note of the material pleadings on records as relied upon by them. We have also gone through the decisions cited by learned counsel for the petitioner. It is the case of the petitioner, undisputed by the respondent that petitioner is not a registered dealer under JVAT Act, 2005 nor has been assessed to tax under the Act. No demand notices were raised against the petitioner as such to the effect that any tax is due against him. Petitioner claims to have made deposit of Rs. 61,74, 899/- in order to ensure continuity of business and to avoid coercive action without any demand of tax since the goods transported by the petitioner were already excisable to Central Sales Tax to the tune of Rs. 58,05,157/- which were paid in the State of Origin. No sale took place in the State of Jharkhand within that period. The principles regarding maintainability of writ petition seeking refund in case the levy is unauthorized or without jurisdiction or is unconstitutional is well settled by the decisions of the Apex Court. In the case of HMM Ltd. (supra), the Apex Court has held that realization of tax....
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....nnexure-4) and the order of learned Commercial Taxes Tribunal dated 31st October, 2017 (Annexure-8) upholding the same cannot be sustained in the eye of law Accordingly, they are set aside. The matter is remitted to the respondent no. 3, Joint Commissioner of Commercial Taxes (Admin), Ranchi to consider the claim of refund of the petitioner in accordance with law within a period of six weeks from today. Petitioner should appear before the respondent no. 3 on 15th February, 2021 with the relevant records. 9. The writ petition is allowed in the manner and to the extent indicated hereinabove. However, we make it clear that any observations made hereinabove, shall not prejudice the case of the parties while considering the claim of refund. (Emphasis supplied) 10. Pursuant to such order, the Joint Commissioner of State Tax (Dhanbad Division) has passed an order dated 25.3.2021 (Annexure-10 in both Writ Petitions) holding that the assessment for the year 2014-15 has already become time barred. So far as the financial year 2015-16 is concerned, it has also held that there was nothing on record to suggest that the petitioner had undertaken any sale or purchase in the State of Jharkhand. ....