TaxTMI 
TaxTMI 
2024 (1) TMI 508
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....3911 of 2022 (Assessment Year 2012-13) has been preferred for setting aside the order dated 28.5.2022 (Annexure-6) passed by the Tax Authority, whereby refund application of the petitioner to the tune of Rs. 19,09,596/- has been rejected on same and similar grounds. Since the issues are common, as such both these applications are being heard together and disposed of by this common judgment. For brevity, relevant facts have been taken from W.P.(T) No. 3944 of 2022. 2. An assessment order was passed on 01.04.2014 determining Rs. 35,06,253/- as the Tax payable by the petitioner. An excess demand Notice for the period 2009-10 was issued on 02.09.2014 to the petitioner in Form JVAT-300 indicating Rs. 56,86,616/- as the excess amount paid by the petitioner, after taking into account the Tax paid by the petitioner and the TDS amount. Refund application has been made by the petitioner on 07.03.2015 in Form JVAT-206. It is the case of the petitioner that at the time of filing of refund application, no amount was due to be paid by the petitioner to the department. Reminder was given by the petitioner to process its refund Application. Subsequently, one letter was sent on 15.07.2019 by the ....
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....hat upon issuance of reminders by the petitioner (Annexure-4, 4/1 and 4/2 to the writ petition), the respondents have simply noted that the steps to process refund application should be taken expeditiously. However, from the entire records not even a single document could be found which shows that the respondents have taken any step to process refund application of the petitioner for the last seven years. There also does not exist any proceedings recorded in the order sheet prior to 04.01.2021. 4. Mr. M.S. Mittal, learned Senior Counsel, assisted by Mr. Rahul Lamba and Mr. Salona Mittal, made following submissions: (I) First limb of argument of the petitioner's counsel is that the Respondents took shelter of Rule 19 of JVAT Rules, 2006 to bar the claim of refund made by the petitioner on the ground of delay; though the provisions of Section 52 and 55 of the parent Act, i.e., JVAT Act, 2005 does not prescribe any period of limitation in seeking refund once the assesse becomes eligible for refund and excess demand notice has been issued. Learned senior counsel further submits that the procedure relating to grant of refund application is stated in Section 52 of the JVAT Act. It may....
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....f the JGST Rules when the question of its enforcement arises and mere fact that there was no specific relief sought for to strike down or to declare the said Rules as ultra vires would not stand in our way of not enforcing them. [See Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise & Anr. (Supra)]. The aforesaid view has also been expressed by the Hon'ble Apex Court in the case of Bharthidasan University v. All-India Council for Technical Education reported in (2001)8 SCC 676, wherein it was held as under: "14. The fact that the Regulations may have the force of law or when made have to be laid down before the legislature concerned does not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make Regulations is confined to certain limits and made to flow in a well-defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the courts are bound to ignore them when the question of their enforcement arises and the mere fact that there was no specific relief sough for strike down or declare them ultra vires, particularly when ....
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....me has been given a complete go by. Thus, the action of the Respondents is unjust and arbitrary which seek to defeat legitimate claims of the petitioner. 6. Mr. Ashok Kr. Yadav, learned counsel for the respondents submits that Section 52 of the JVAT Act, 2005 read with Rule 19 of the JVAT Rules, 2006 specify that after the receipt of the excess demand notice to a dealer, the dealer is to make an application for refund in form JVAT 206 within 90 days. Rule 19 further prescribes that no refund shall be made to a dealer if there is an outstanding amount against it. He contended that from bare perusal of Rule 19(2)(a) of JVAT Rules the intent is clear and the word shall have been used to specify the duration, after receipt of an excess demand notice, within which a refund application should be preferred. It has further been submitted that the rules further prescribe that in cases of delay, the prescribed authority shall have the power to condone the delay on making of an application. Further, Rules 19(5) clearly prescribes that no refund shall be made to any dealer if there is an amount outstanding against it. Rule 19(4) also gives powers to the prescribed authority to adjust the exc....
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.... right as well as the remedy. Instead of generalizing a principal the safest course would be to examine each case on its own facts and circumstances and determine for instance whether it affects substantive rights and extinguishes them or whether it merely concerns a procedural rule only dealing with remedies, or whether the intendment to prescribe limitation is discernible from the scheme of the Act or is inconsistent with rule-making power etc. 14.... It appears to us that where the Legislature clearly intends to provide specifically the period of limitation in respect of claims arising thereunder it cannot be considered to have left such matters in respect of claims under some similar provisions to be provided for by the rules to be made by the Government under its delegated powers to prescribe the procedure to be followed in proceedings before such Court. What is sought to be conferred is the power to make rules for regulating the procedure before the Insurance Court after an application has been filed and when it is seised of the matter. That apart the nature of the rule bars the claim itself and extinguishes the right which is not within the pale procedure. Rule 17 is of su....
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....eriod within the prescribed time, the prescribed authority shall, notwithstanding anything contained in Section 37, proceed to assess the dealer provisionally for the period for such default. S 73(1) Every clearing, forwarding or booking agent, Government Departments, Banks, Financial Institutions, warehouses, godowns, cold storages or Broker or a person transporting goods who in course of his business handles the document of title to the goods or transports goods or takes delivery of goods for or on behalf of a dealer and having his place of business in the State of Jharkhand, shall furnish information about his place of business to the prescribed Authority, within such time and in such manner as may be prescribed." Therefore, it can safely be held that when the legislature has consciously not used such a language under Section 52 of the Act, the Government could not have, by way of Rules, prescribe a period of limitation for filing of a refund application. In the present case as well, the right to refund gets extinguished by the time limit provided in the JVAT Rules. This certainly affects the substantive and statutory right of the petitioner to get refund to which it is guar....
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.... refund application of the petitioner was kept pending for such a long period of time. There is also no explanation as to why when the petitioner was in fact taking steps to process the refund application, the order sheet only starts from January 2021(Annexure 8). From scrutiny of Section 55 of the JVAT Act it would make it evident that interest would be levied for the period commencing 90 days after the application for refund. Thus, the legislature has intended that Refund Application should be decided within a period of 90 days. In the present case, the same has been given a complete go by. 13. In view of the aforesaid deliberations we hold that the action of the Respondents is unjust and arbitrary which seek to defeat legitimate claims of the petitioner. In this context, reference may be made to the judgment of the Hon'ble Supreme Court in the case of Hindustan Sugar Mills v. State of Rajasthan, (1978) 4 SCC 271, wherein it has been held that- "18. .... It is true and we are aware that there is no legal liability on the Central Government to do so, but it must be remembered that we are living in a democratic society governed by the rule of law and every Government which cla....