D.N.PATEL,A.C.J. - (1.) This writ petition has been preferred mainly for the reason that while passing the assessment order dated 29.03.2011, gross error was committed by the respondents. Respondents stated that due to belated filing of the JVAT Form-409 (audit report), penalty of 0.1 % was imposed as per Section 63(3) of the Jharkhand Value Added Tax Act, 2005.
(2.) It is submitted by the counsel for the petitioner that neither there was belated filing of the JVAT Form-409 (audit report) nor the respondents have recovered 0.1%, but, they recovered 1.0% penalty. Thus, later on, rectification of error application was preferred and the order was reviewed under Section 81 of the Jharkhand Value Added Tax Act, 2005. The said order was passed on 11.06.2012, which is at Annexure-A to the counter-affidavit filed by the respondent-authorities. Thus, there are two errors committed by the respondents viz.- (a) respondents have wrongly treated, filing of the JVAT Form - 409 as belated filing and this error has now been rectified; and (b) as per assessment order, 0.1% penalty was imposed, whereas, recovered penalty was 1.0%. Now, the original assessment order dated 29.03.2011, which is at Annexure-3 to the memo of this writ petition, has now been corrected under Section 81 of the Act, 2005 vide order dated 11.06.2012, which is at Annexure-A to the counter-affidavit. Thus, the whole penalty has been removed from the original assessment order, as the respondents have accepted that there is no belated filing of the JVAT Form-409. Moreover, in this case, instead of recovery of 0.1 % penalty, by mistake respondents recovered it directly from the bank account of the assessee at the rate of 1.0%. Thus, whole penalty is now removed by review or rectification of error order dated 11.06.2012. Hence, as per revised calculation given by the respondents, amount of Rs. 19,11,208/- to be refunded, as per Annexure-B to the counter-affidavit, filed by the respondent-State.
(3.) It further appears from the facts of the case that this petitioner has received review or rectification of error order, which is dated 11.06.2012, on 13.06.2012. Immediately on 14.06.2012, application has been preferred by this petitioner that the excess amount of penalty which was wrongly recovered at Rs. 19,11,208/-, which in fact to be refunded, may be adjusted towards the tax liability for the month of May, 2012. Respondents have neither refunded the amount, which is wrongly recovered nor have adjusted the aforesaid amount towards the tax liability for the month of May, 2012. Assessment order for the year 2012-13 was passed on 29.02.2016. When the assessment order was passed, petitioner came to know that excess amount of Rs. 19,11,208/-, which was to be adjusted towards the tax liability for the month of May, 2012, was never adjusted by the respondents nor the amount has been refunded to the assessee. Hence, refund application was preferred, which was rejected by the respondents, vide order dated 16.11.2016, which is at Annexure-14 to the memo of this writ petition, which is under challenge.;