Saikh Abdul Motaleb (J), Member -
(1.) USHA Corporation Ltd. (previously known as MFL Corporation Ltd.), a company falling within the meaning of the Companies Act, 1956 having its registered office at 2, Camac Street, Kolkata 700 016, in this petition filed under section 8 of the West Bengal Taxation Tribunal Act, 1987 has sought the intervention of this Tribunal in the matter of non -receipt of refund of Rs. 7,86,330 arising out of the assessment made by the Sales Tax Officer, Park Street Charge (respondent No. 1) in respect of the period fourth quarter ending on March 31, 2007. Shri A.K. Dugar, learned advocate appearing on behalf of the petitioner, submits that in the demand notice in form 27 issued under memo No. 1908 dated June 26, 2009 it was shown that a total amount of Rs. 7,86,330 had been shown as excess payment made by the petitioner for the assessment period four quarters ending on March 31, 2007. However, in the assessment order a contrary position was shown. In the assessment order passed by respondent No. 1 an amount of Rs. 7,36,524.13 was shown as payable by the petitioner. Shri Dugar, learned advocate, however does not agitate on this point as the same appears to be a simple clerical error apparent on the face of the records. It is submitted that on receipt of the notice in form 27 the petitioner by letter dated August 3, 2009, requested respondent No. 1 to grant refund of the amount in question. It was made categorically clear that the petitioner did not carry forward the excess amount of input tax nor adjusted against any subsequent return. He draws our attention to the provision of section 62 of the West Bengal Value Added Tax Act, 2003 (in short, "VAT Act") read with rule 59 of the West Bengal Value Added Tax Rules, 2005 (in short, "VAT rules"). Section 62 of the VAT Act provides that "subject to other provision of this Act, the Commissioner shall, in the manner and within the time, as may be prescribed, refund to a dealer any amount of tax, late fee, interest or penalty paid by such dealer in excess of the amount due from him under this Act and also excess of net tax credit over output tax payable under this Act". Sub -rule (4) of rule 59 of the VAT Rules prescribes that if upon assessment it is found that the assessee has paid in excess of the amount due from him, the assessing authority while issuing the demand notice should enclose a refund adjustment order in respect of the excess amount of tax paid by him and also authorising him to adjust the said excess amount against the amount payable according to the return which falls subsequent to the date of receipt of refund adjustment order by the assessee. If it is found that any amount is due from the assessee in respect of the earlier period the assessing authority has been empowered to make adjustment of the outstanding dues against the excess amount arising out of the assessment. Balance amount, if any, after adjustment should be refunded. However, such adjustment should be specified in the refund adjustment order. If the amount of refund exceeds Rs. 20,000 the appropriate authority shall obtain prior approval of the Senior Joint Commissioner concerned who shall make his observation with 15 days from the date of receipt of the proposal. Proviso to sub -rule (5) of rule 59 of the VAT Rules provides that "where a dealer makes an application any time but ordinarily not later than thirty days from the date of receipt of the refund adjustment order, for payment of the refundable amount otherwise than by way of refund adjustment order on the ground that there shall be no such amount of tax payable by him against which the refundable amount may be adjusted and if the appropriate assessing authority is satisfied to that effect, the said authority may refund the said amount to the dealer accordingly by refund payment order (cash) or by cheque".
(2.) THE learned advocate appearing on behalf of the petitioner submits that notice in form No. 27 (demand notice) was issued on June 26, 2009. The petitioner by letter dated August 3, 2009 requested respondent No. 1 to grant refund of the amount shown as excess in form 27. It was also stated in the said letter that the petitioner did not carry forward the excess amount of ITC nor adjusted it against returns. Even after expiry of considerable period of time the said excess amount has not been refunded to the petitioner. It is, therefore, prayed that direction be given so that the amount in question be refunded at the earliest. Shri T.N. Banerjee, learned State Representative, upon instruction submits that refund has been held up as the petitioner has filed a revision petition (RN -844/2009) before this Tribunal in respect of the assessment period four quarters ending on March 31, 2007 challenging the disallowance of net tax credit on percentage basis taking into consideration manufacture of non -taxable goods during the period in question. The said revision petition has been heard by this Tribunal but no order has yet been passed. Respondents are awaiting the decision of this Tribunal.
(3.) WE fail to appreciate the reasons adduced by the respondents for withholding the refund. If the decision of this Tribunal in Case No. 844 of 2009 goes in favour of the petitioner the petitioner will be entitled to a refund in excess of the amount claimed in this petition. On the contrary, if the decision goes in favour of the respondents they will still be under obligation to refund the amount shown as excess payment in form 27. The reason therefore does not appear to be convincing. In view of the facts and circumstances, the respondents are directed to refund Rs. 7,86,330 by September 30, 2010. The petition is allowed in full. No order as to costs.
Dipak Chakraborty (T), Member