2012 (2) TMI 754

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.... transferred from land owner to CGEWHO against payments made by CGEWHO. However, the CGEWHO debited the entire amount paid to the land owners in the account of the petitioner and also deducted WCT @ 4% and deposited the same with the department. 3. The petitioner filed its return in respect of Assessment Year 2005-06 and submitted that the cost of land is outside the purview of definition of 'goods' and same is not liable to VAT. It was also stated that since no construction of the project had yet started, therefore, no VAT was payable on the payment made by the contractee. On 30.3.2009, the Assessing Authority passed an assessment order and accepted the plea raised by the petitioner and ordered refund of the tax deducted at source, amounting to Rs.1,06,42,788/- (P-1). However, no refund voucher was issued in favour of the petitioner along with the assessment order. 4. On 7.7.2009, a notice was issued to the petitioner as the assessment order dated 30.3.2009 was taken in suo-moto revision proceedings. On 28.7.2009 (P-2), the Revisional Authority passed an order holding that since the TDS deducted and deposited pertains to land which is beyond the taxation purview of the VAT A....

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....that interest on the refunded amount, which is payable in terms of Section 20(8) of the VAT Act, has not been paid to the petitioner. 8. On 15.11.2011, a short reply on behalf of the respondents has been filed pointing out that on 5.8.2011, the Excise and Taxation Officer-cum-Assessing Authority, Gurgaon, has passed an order determining the refundable amount as Rs.1,06,42,788/- (R-1). On 3.10.2011, the Excise and Taxation Commissioner, Haryana also granted approval for refund of the said amount. On 5.10.2011, the refund voucher was prepared and the same was handed over to the petitioner on 17.10.2011. It has been contended that the refund voucher was prepared on 5.10.2011 i.e. within 60 days of the receipt of the order passed by the Tribunal, however, it is the petitioner who has received the same after 60 days. Therefore, the petitioner is not entitled to claim the interest. 9. We have heard learned counsel for the parties at length and perused the paper book with their able assistance. The only issue which survives for adjudication is "Whether the petitioner is entitled to any interest to be paid on the amount of refund i.e. Rs.1,06,42,788/-. 10. It would be app....

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....y to the date when the refund is made. [sub-section (10) substituted vide Act No. 10 of 2009 w.e.f. 20.3.2009. Before substitution it reads - "any amount due to a dealer under sub-section (4) but not refunded to him within sixty days from the date of passing the order allowing the refund, shall carry with it simple interest at the rate of one per cent per month for the period from the date of passing the order allowing the refund to the date when the refund is made"] 11. Where any question arises as to any period to be excluded for the purposes of calculation of interest payable under sub-section (9) or sub-section (10) because the delay for the period in question has been due to the fault of the assessee entitled to the refund, such question shall, after giving the assessee a reasonable opportunity of being heard, be determined by the Commissioner by an order in writing." ______________ Rule 41. REFUND "(1) to (4) xxx xxx xxx (5) Where a refund of any amount paid by any dealer or other person becomes payable as a result of the order of any appellate or revising authority or any court and the same is not the subject-matter of any further ....

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....r passed by any court, appellate authority or revising authority. Sub-section (6) provides that the amount refundable to any person would be subject to the approval of the prescribed authority who may after affording an opportunity of hearing to the affected person, change the amount of refund or order that no refund is due. Sub-section (9) stipulates that any amount which is refunded after a period of sixty days from the date of making an application under sub-section (5) would carry with it simple interest at the rate of one per cent per month for the period from the date of making the application to the date when the refund is made. 12. Similarly, sub-rule (5) of Rule 41 of the VAT Rules talks of making an application by the dealer to the officer incharge of the district concerned along with the original copy of the order which constitutes the basis for refund and where the said authority fails to do so within sixty days of the receipt of such application, the claimant is required to be paid interest at the rate of one per cent per month from the date of making the application to the date when the refund payment order or refund adjustment order, as the case may be, is issued ....