TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 672
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.... a Public Limited Company registered under the Companies Act, 1956 and is engaged in activities including construction, engineering, technology, manufacturing etc. 3) As part of it's activities it also executes turnkey work contracts including drawing, construction of civil and mechanical structures for State and Central Governments, Public Sector Undertakings, private and Public Limited Companies. 4) It was performing similar activity in State of Tripura and was registered under the Tripura Value Added Tax Act,2004 (for short 'the Act'). It's clients included the Oil and Natural Gas Corporation, a Central Government Corporation and the Public Works Department of the State of Tripura for whom it was doing works contracts. 5) The issue in this Writ Petition relates to the entitlement of the petitioner to refund of Value Added Tax (VAT) for the financial years 2006-07 to 2013-14. 6) During this period it is not in dispute that petitioner filed quarterly returns as mandated by Section 24 of the Act r/w Rule 18(III) of the Rules framed under the Act. 7) The Works Contract Tax (VAT) TDS was collected and deposited on petitioner's behalf by the ONGC and the PWD Department ....
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....t and the Rules made thereunder, the Commissioner shall, refund to a dealer the amount of tax, penalty and interest, if any, paid by such dealer in excess of the amount due from him. (2) Where any refund is due to any dealer according to return furnished by him for any period, such refund may provisionally be adjusted by him against the tax due or tax payable as per the returns filed under section 24 for any subsequent period in the year; Provided that, the amount of tax or penalty, interest or sum forfeited or all of them due from, and payable by the dealer on the date of such adjustment shall first be deducted from such refund before adjustment." 16) Thus the Commissioner is obligated to refund to a dealer like petitioner the amount of tax, penalty and interest, if any, paid by such dealer in excess of the amount due from him subject to the provisions of the Act. 17) Rules 35 deals with the manner of seeking refund. It states: "Rule 35: REFUNDS : (1) An application for refund shall be made to the Superintendent of Taxes and shall include, amongst other, the following particulars; (a) the name, address and registration No. of the ....
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....ixed by the statute is necessarily to be arbitrary. ... ... ... 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 of procedure. Rule 17 is of such a nature and is similar in terms of Section 80. There is no gain-saying the fact that if an employee does not file an application before the Insurance Court within 12 months after the claim has become due or he is unable to satisfy the Insurance Court that there was a reasonable excuse for him in not doing so, his right to receive payment of any benefit conf....
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....ndent nos.4 and 5 initially stating in para 8 thereof that no claim for refund would lie without assessment of 'final amount' of tax, that no refund can be allowed to any dealer without conducting 'assessment', but admitting that petitioner had filed it's self declaration/return, and contending that the TDS deductions are provisional in nature. 26) In para 12 of the counter affidavit this is reiterated by respondents as under: ".. without making any assessment of the dealer/petitioner, the actual amount of tax cannot be ascertained and the claim raised by the petitioner cannot be proved conclusively". It is further stated that: "a dealer is selected for assessment on random basis and after completion of assessment, the actual tax liability of the dealer can be determined and the excess amount of tax may be refunded to the dealer". 27) If the respondents do assessments on random basis, and they did not select the petitioner's case for assessment under Section 30 or for an Audit assessment under Section 31 or Section 34 of the Act on such random basis, they cannot deny refund saying that there was no 'assessment' of the petitioner. The petitioner cannot be ....
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....er to initiate appropriate action under the Act. 36) Had the audit reports indicated that petitioner had paid less tax that what it is liable for, proceedings would have been undoubtedly initiated against the petitioner for assessment under Section 30 within the period of 5 years prescribed under Section 33 of the Act, on basis of the audit report to collect shortfall in tax and penalty by the respondents. 37) Conversely, when those audit reports filed by the petitioner within the time prescribed by the Act indicate that petitioner should get a refund, the respondents cannot deny the same raising untenable objections. 38) The respondents have also contended that petitioner did not submit the claim for Refund in Form XXXIII and it had given the request for refund on plain paper and so petitioner cannot seek the refund. 39) This plea was raised for the first time in a Letter dt.9.7.2015 to the petitioner by the Joint Commissioner of Taxes. It is highly belated as the disputes pertain to period 2006-07 onwards. 40) The petitioner then made an application in the said Form XXXIII on 31.5.2016 (Annexure XV to the rejoinder). 41) When the bar of limitation is not prescri....
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....er dt.10.8.2023, 13.12.2023). 48) It appears that every effort was made by the respondents to avoid disposal of the Writ Petition by dragging the proceedings taking one pretext or the other and by filing multiple pleadings each time raising some new objection. Their conduct is not bona fide. 49) Counsel for respondents contended that petitioner should have also produced the challans for tax paid by ONGC and the PWD Department of the State Government. 50) Admittedly the petitioner is the beneficiary of the TDS deducted for payments made to it by ONGC and the PWD Department of the State Government. 51) Under Rule 7(1), TDS is to be deducted by the above referred organizations and under Rule 7(3), and ONGC and the PWD Department of the State have to pay it by challan to the State Government. 52) Though Rule 7(4) directs furnishing of challan copies to the dealer/petitioner (works contractor), and Rule 7(7) states the dealer has to enclose the challans to the Superintendent of Taxes along with the quarterly returns, the respondents had not rejected the quarterly returns saying these challans were not given by petitioner. They are therefore presumed to have been submitted....
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.... Consideration of refund application cannot be under Section 29 of the Act because the quarterly assessments made had been accepted without demur and the same had attained finality and cannot be reopened at this stage. 61) Next, the respondent No.5 admits that petitioner filed both quarterly and annual returns, but states that annual returns are not according to the Act, and actual refund was claimed on figures incorporated in the annual return. The respondent no.5 might be correct in stating that annual returns are not permitted by the Act and they cannot be considered. But each of the refund applications given in the financial years in question mention the statutory VAT audit report as well. In fact the statutory audit report under Section 53 is the basis for the annual return as well. Conveniently, the respondent no.5 ignores the fact that the claim for refund is also based on the statutory VAT audit report. This is a dishonest consideration of the VAT refund claim by the said official. 62) The respondent no.5 then states that the returns for the year 2006-07 to 2013-14 is not incorporated with proper TDS certificates and challan copies. It is even said that there a....
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.... point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. It declared: "5. This Court, has time and again held, that the State should act as a model litigant. In this respect, we can gainfully refer to the following observations made by this Court in Urban Improvement Trust, Bikaner v. Mohan Lal (2010) 1 SCC 512: (SCC pp. 515-16, paras 6-9) "6. This Court has repeatedly expressed the view that Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf." 7. In Dilbagh Rai Jarry v. Union of India (1974) 3 SCC 554 this Court extracted with approval the following statement [from an earlier decision of the Kerala High Court (P.P. Abubacker case AIR 1972 Kerala 103, AIR pp. 107-08, para 5)] : (SCC p. 562, para 25) '25. ... "5. ... The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with....