LAWS(P&H)-2007-9-121

SADHU OVERSEAS Vs. STATE OF HARYANA AND ANR.

Decided On September 28, 2007
Sadhu Overseas Appellant
V/S
State of Haryana and Anr. Respondents

JUDGEMENT

(1.) THE right to payment of refund as well as payment of interest on delayed refund has once more been raised in these two petitions (C.W. P. Nos. 6555 of 2007 and 11149 of 2007) filed by M/s. Sadhu Overseas (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. 5,38,802 in respect of assessment year 1999 -2000 along with interest. It has further been prayed that direction be also issued to the respondents to pay interest on delayed refund of Rs. 2,54,782 in respect of assessment year 1998 -99. Still further, a prayer has been made for quashing the order dated June 7, 2007, passed by the Excise and Taxation Commissioner, Haryana, granting approval for withholding of refund of Rs. 5,38,780 on the ground that proceedings under the Haryana General Sales Tax Act, 1973 were still pending against the assessee.

(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 sale, purchase and export of iron/steel as also cotton knitted T Shirts. The assessee -petitioner filed statutory returns for the assessment year 1999 -2000. The assessment was finalised by the Assessing Authority vide order dated August 16, 2001 and it was found that the assessee -petitioner had paid excess amount of Rs. 1,83,573 under the Act. There was "nil" demand under the 1956 Act. Exercising the revisional power under Section 40 of the Act read with Section 9(2) of the 1956 Act, the Revisional Authority, i.e., Deputy Excise and Taxation Commissioner, vide its order dated October 29, 2002, revised the assessment order noticing that the Assessing Authority did not include a turnover of Rs. 53,67,802 paid by the assessee -petitioner during the course of inter -State trade and commerce to different parties of Delhi/Ghaziabad in respect of DEPB licences during the year for which the assessment was framed. Accordingly, an additional demand of Rs. 5,38,780 was raised (P 1).

(3.) THEREAFTER the assessee -petitioner filed an application for refund of excess tax deposited by it for the assessment year 1999 -2000. During the pendency of the said application, reassessment proceedings were again initiated for the aforementioned assessment year and the Assessing Authority again taxed DEPB licences and raised an additional demand of Rs. 5,38,802 vide order dated July 14, 2004 (P 3). An appeal was filed by the assessee -petitioner before the Joint Excise and Taxation Commissioner (A), Faridabad, against the order dated July 14, 2004, which was allowed vide order dated June 13, 2006, setting aside the order of the Assessing Authority (P4). The assessee -petitioner then again applied for refund vide application dated September 5, 2006 (P 5). However, the respondents failed to refund amount of Rs. 5,38,802 in respect of assessment year 1999 -2000.