ESCOTEL MOBILE COMMUNICATION LTD. Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE right to payment of interest on refund has once again been raised in this petition filed by M/s Escotel Mobile Communication Ltd. (for brevity, 'the assessee petitioner') by invoking the writ jurisdiction of this Court under Article 226 of the Constitution. It has been prayed that direction be issued to the respondent State to refund Rs. 95,66,924/- plus interest (46,58,324 + 49,08,600 plus interest) for the assessment years 2000- 01 and 2001-02.

(2.) THE assessee petitioner was a registered dealer under the Haryana General Sales Tax Act, 1973 (for brevity, 'the Act') as well as the Central Sales Tax Act, 1956 (for brevity, 'the 1956 Act'). Subsequently, it has been registered, after the repeal of the Act, under the Haryana Value Added Tax Act, 2003 (for brevity, 'the VAT Act'). The assessee petitioner is engaged in the business of mobile telecommunication and is a Limited Company. It is carrying on its business at Anand Banquet Hall, Delhi Road, Sonepat. The assessee petitioner filed statutory returns for the assessment years 2000-01 and 2001-02. The assessment was finalized by the Assessing Authority, Sonepat, vide orders dated 30.1.2003 and 26.2.2003 respectively. The element of 'Activation Charges' was included in the turnover by the assessing authority, which levied tax and interest creating additional demands of Rs. 46,48,324/- and Rs. 49,29,593/- in respect of both the assessment years under the Act. Aggrieved by those assessment orders, the assessee petitioner filed two appeals, which were dismissed by the Joint Excise and Taxation Commissioner (Appeals) Rohtak, vide order dated 30.4.2004. On further appeal to the Haryana Tax Tribunal (for brevity, 'the Tribunal'), the orders of assessment were set aside, vide order dated 25.4.2006 (P-1). The Tribunal followed the judgment of Hon'ble the Supreme Court in the case of Bharat Sanchar Nigam Limited v. Union of India, (2006)3 SCC 1, and held that the value of SIM Card Activation Charges could not be included in turnover. The view of the Tribunal is discernible from the penultimate para of its order, which read as under :-

(3.) IN the written statement filed by the respondents it is claimed that the Assessing Authority, Sonepat, passed orders dated 21.6.2006 (P-5 and P-6) for refund of the amount in accordance with the observations made by the Tribunal in its order dated 25.4.2006 (P-1). It has been pleaded that thereafter respondent No. 2 following the provisions of Rule 36 of the Rules placed the matter relating to the refund of the assessee petitioner before the Deputy Excise and Taxation Commissioner, Sonepat, who made the following observation :- "Financial Year : 2000-2001