DEB KUMAR CHAKRABORTI, J. -
(2.) BY this application under section 8 of the West Bengal Taxation Tribunal Act, 1987, the petitioner, M/s. Garden Reach Ship Builder and Engineers Ltd., of 43/46, Garden Reach Road, Kolkata 700 024, has challenged the legality and validity of the order refusing to settle the dispute of tax, penalty and interest in respect fourth quarter ending on March 31, 1982 under the Central Sales Tax Act, 1956 and subsequent issue of form 4 for sending information under section 13 of the West Bengal Sales Tax (Settlement of Dispute) Act, 1999 to the revisional authority for disposal of the pending revision case. Mr. A. K. Mukherjee, learned advocate appearing for the petitioner, has submitted that the petitioner filed an application in form 1 for settlement of disputed tax, penalty and interest amounting to Rs. 8,98,452.51, Rs. 20,000 and Rs. 4,89,375, respectively, under the West Bengal Sales Tax (Settlement of Dispute) Act, 1999 along with a forwarding letter on December 27, 2001. In the said letter the petitioner contended that it was entitled to get back refund of Rs. 5,52,928 in terms of the principle laid down by this Tribunal in the case of V. J. Suraiya v. Additional Commissioner, Commercial Taxes reported in, (2002) 127 STC 575 (WBTT);, (2002) 38 STA 110 (WBTT). The learned advocate has alleged that since then the Additional Commissioner, Commercial Taxes, respondent No. 2, did not take any action on the matter for long 6 (six) years. Thereafter, on July 10, 2006, the petitioner received notice in form 2 with a direction to deposit Rs. 3,41,412 as calculated by respondent No. 2, for settlement of dues. The petitioner in response to the notice in form 2 sent reply that it has already deposited Rs. 8,73,885 and therefore, after adjustment of the claimed dues, the petitioner shall get refund of Rs. 5,52,928. Mr. Mukherjee has further alleged that instead of settle the dispute of tax, penalty and interest and to refund the excess amount after adjustment, respondent No. 2, issued a form 4 on November 2006 to the Registrar, West Bengal Commercial Tax Appellate and Revisional Board with a copy to the petitioner intimating that the prayer for settlement was refused and the revisional authority may dispose the revision on the merits. Hence, the learned advocate has prayed for a direction to respondent No. 2 to settle the dispute of tax, penalty and interest as per law and to refund the excess amount to the petitioner along with interest. Mr. B. Majumdar, learned State Representative, has opposed the contention of the learned advocate of the petitioner. We have heard and considered the rival contentions of the parties. Undisputedly an application was filed for settlement of the disputed tax, penalty and interest in respect of fourth quarter ending on March 31, 1982 under the Central Sales Tax Act, 1956. Admittedly, at the time of filing the application in form 1, a revision application bearing No. 1365 of 1996 -97 was pending before respondent No. 3. As per form 1, the amount of tax in dispute is Rs. 8,98,452.51, penalty in dispute is Rs. 20,000 and interest in dispute is Rs. 4,89,375. The amount of admitted tax, penalty and interest is Rs. 5,15,544. As per serial No. 10 of the application the petitioner paid Rs. 8,73,885 on January 22, 1997 against total disputed tax, interest and penalty. These amounts are also shown in revision application in form XXII filed before respondent No. 3. Respondent No. 2 issued form 2 on July 10, 2006 asking to pay Rs. 3,14,412 on the basis of the disputed figure disclosed by the petitioner. But in the said form no amount was shown as amount of tax, penalty or interest in dispute, if any paid before the application for settlement. This is an omission/mistake on the part of respondent No. 2. Neither a copy of demand notice nor copy of assessment order has been produced before us. As per firm XXII filed before respondent No. 3, the amount of admitted tax, is Rs. 5,15,544.07. It is assumed that the said amount has been paid before assessment. Respondent No. 2 did not consider the payment of Rs. 8,73,885 made on January 22, 1997 before filing of the application for settlement. The petitioner is entitled to get adjustment of such payment made before filing the application for settlement. In the above circumstances, we do not find any reason for rejection of the application for settlement of assessed dues. If the calculated amount of Rs. 3,41,412 is adjusted against the payment of Rs. 8,73,885, the petitioner is entitled to get refund of Rs. 5,32,473. The question of payment of interest does not arise until and unless the dispute amount is settled. If there is a delay in making the refund after settling the dues, the question of payment of interest will arise.
We, therefore, dispose the application with the following orders :
(1) The notice in form 2 and form 4 are quashed.
(2) Respondent No. 2 is to consider the payment of Rs. 8,73,885 made on January 22, 1997 before issuing fresh form 2 to be issued by December 10, 2010.
(3) After adjustment of Rs. 3,41,412, if there is any excess amount, the petitioner is entitled to get it back. Respondent No. 1 or the appropriate authority shall refund the excess amount by December 31, 2010.
No order as to costs.
Saikh Abdul Motaleb (Judicial Member).